Waley

This is an appeal from an order of the court below denying appellant’s petition for writ of habeas corpus. The appellant *750 presents the following points for review: “1. The Court erred in denying writ of habeas corpus. 2. The Court erred in not declaring statute attacked to be unconstitutional as shown. 3. The Court erred in denying petitioner law of the land.” We will consider petitioner’s second contention; if that falls, the others must fall.

It appears that the appellant was convicted on an undisclosed daté in the District Court of the United States for the Western District of Washington and sentenced to serve a term of imprisonment of forty-five years, under the Act of June 22, 1932, 47 Stat. 326 , as amended May 18, 1934, 48 Stat. 781 , 18 U.S.C.A. § 408a, which reads as follows: “Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be…

(specially concurring).

I agree that the writ of habeas corpus should be denied to appellant. However, I wish to add a brief statement as to my views on the argument of appellant to the effect that the statute under which he was convicted (Sec. 408a, Title 18, U.S.C.A.) is unconstitutional in that no maximum penalty is prescribed in the law, thereby vesting legislative powers in the judiciary. In my opinion this argument of appellant has not been sufficiently answered in the majority opinion, dr in the case of Bates v. Johnston, 9 Cir., 111 F.2d 966 , May 13, 1940, upon which the majority base their conclusion.

In the case of Andreas v. Clark, 9 Cir., 1934, 71 F.2d 908 , this court had under consideration a like attack made upon the constitutionality of Section 457, Title 18, U.S.C.A. In the cited case (71 F.2d page 909) we said: “The constitutional validity of a particular statute is not affected merely because the statute does not expressly limit and fix the maximum penalty which may be imposed. It is' sufficient if the maximum penalty is fixed by a general or related statute, such as section 457, title 18 U.S.C.A., which fixes death as the penalty for rape.” We held* that the…