Petitioners Brief — Commissioner of Immigration of Port of NY v. Gottlieb

Statement of the case

Statement of the question involved

Argument:

I. The Acts of Congress involved

Act of 1917

Act of 1921

II. The opinion of the Circuit Court of Appeals

Il]. The exception of wives and children out of a particular class

of aliens excluded by the Act of 1917 does not give them

a right of entry superior to that of any other admissible

IV. The immigration laws of Congress disclose no general policy

to except from their provisions wives and children

V. The language of the Act of 1921 is clear and should be en-

forced as Congress intended 17

Conclusion 23

Appendix:

Section 3 of Immigration Act of Feb. 5, 1917, 39 Stat. 874, c. 29.. 25-31

Quota Law of May 19, 1921, 42 Stat. 5, c. 8, as amended by

Resolution of May 11, 1922, 42 Stat. 540, c, 187 32-38

AUTHORITIES.

Cases:

American R. R. Co. v. Birch, 224 U. 8. 547

Holy Trinity Church v. United States, 143 U.S, 457

Lapina v. Williams, 232 U. 8. 78

Low Wah Sucy v. Backus, 225 U. 8. 460

St. Lowis and Iron Mountain Ry. v. Taylor, 210 U. 8, 281

United States v. Antikamnia Company, 231 U. 8, 654

United States v. Bernays, 158 Fed. 792

United States v. Colorado & N. W. R. R. Co., 157 Fed. 321

United States v. First National Bank, 234 U. 8, 245

United States v. Goldenberg, 168 U. 8. 95

United States v. Mrs. Gue Lim, 176 U. 8. 459

United States ex rel. Markarian v. Tod, 290 Fed. 198... ...----- 22

Yee Won v. White, 256 U. S. 399. . .. 2... e eee e eee cece ee eeeees 17,19

Zartarian v. Billings, 204 U. 8. 170 16, 17

Statutes:

Act of Feb. 5, 1917, 39 Stat. 874, c. 29

Section 3 printed in full in appendix

Act of May 19, 1921, 42 Stat. 5, c. 8

Entire Act printed in appendix

Resolution of May 11, 1922, 42 Stat. 540, c. 187

70945—23-——1 (1)

Inthe Supreme Gourt of the United States.

Ocrosper Term, 1923.

COMMISSIONER OF IMMIGRATION OF PORT

New York, petitioner, .

No. 221.

v.

Grrre. Gorruies AND IsRaeL GOTTLIEB.

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SECOND CIRCUIT.

BRIEF FOR THE PETITIONER.

STATEMENT.

This case comes before the court upon a writ of

certiorari to the United States Circuit Court of

Appeals for the Second Circuit, to review a judgment

of that court affirming a judgment of the District

Court for the Southern District of New York, which

sustained a writ of habeas corpus and directed the

discharge from custody of certain aliens applying for

admission to the United States.

The aliens, Gittel Gottlieb, age 24, and Israel

Gottlieb, age 4, who are natives of Palestine, arrived

at the port of New York on December 27, 1921.

())

— RW AER See SERRE PERN AERTS ET ETI

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2

(R. 13.) They had come to join Solomon Gottlieb,

their husband and father, respectively, who had

resided in New York City for approximately fourteen

months prior thereto, was engaged as Rabbi of a

Jewish congregation, and had declared his intention

to become a citizen of the United States. (R. 17-18.)

On December 30, 1921, the aliens were duly

accorded a hearing before a Board of Special Inquiry

(R. 14-19), which, after hearing the testimony,

excluded them upon the ground that they had come

to the United States in violation of the “Quota

Law” of May 19, 1921, 42 Stat. 5, ¢. 8, in that they

were natives of a country whose quota had been

filled (R. 18-19).

An appeal was taken to the Secretary of Labor,

who, on January 15, 1922, affirmed the decision of

the Board and directed the deportation of the aliens.

(R. 19.) A petition for a writ of habeas corpus was

immediately presented to the United States District

Court for the Southern District of New York, and

the writ awarded. (R. 1-8.) Return was made

(R. 9-19), and subsequently the relators filed a

traverse (R. 20-24) and a supplemental traverse

(R. 25-37). The cass came on for hearing before

Hon. Julian W. Mack, United States Circuit Judge,

who sustained the writ and entered an order (March

13, 1922) releasing and discharging the relators from

the custody of the immigration officers, and directing

that they be admitted to the United States. (R.

38-43.) (278 Fed. 564.)

PORT Et i .

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3

Thereafter, on May 13, 1922, an appeal was taken

by the Commissioner of Immigration of the Port of

New York to the Circuit Court of Appeals for the

Second Circuit (R. 46-51), which court on November

24, 1922, affirmed the decree and order of the District

Court (R. 53-59). (285 Fed. 295.)

Thereafter, on March 24, 1923, upon petition duly

presented to this court, a writ of certiorari was

granted to review the judgment of the Circuit Court

of Appeals. (R. 59-60.) The single question in-

volved is one of construction, and arises out of the

pleadings filed in the District Court.

STATEMENT OF THE QUESTION INVOLVED.

The second assignment of error filed in the Circuit

Court of Appeals (R. 44-45) was as follows:

Second. That said Court erred in holding

that the Act of May 19, 1921, properly con-

strued, should include within the exceptions

from the quota provisions, the wife, and

children under sixteen years of age, of a

minister.

The failure of the Circuit Court of Appeals to

sustain this assignment raises the only question to be

considered by this court.

This appeal presents a case of hardship that nat-

urally excites our sympathy. We would gladly

resolve the doubt in favor of the immigrants, if any

doubt existed. We must not permit a hard case to

make bad law by a perversion of the laws of Congress.

We would gladly concur in the opinion of the courts

PR OTR PCM a ay

‘

below, if the law were not, as we believe, too clear,

and the consequences of the decision too serious in

the practical administration of the immigration stat-

utes to permit us to acquiesce. While legislative

policy is not for the Executive Department of the

Government, we venture the opinion that there

should be such elasticity in the practical administra-

tion of the law as would permit the Commissioner of

Immigration to make an exception in isolated cases,

where the enforcement of the law requires the separa-

tion of a family, a result which seems to us abhorent.

ARGUMENT,

I.

The acts of Congress involved.

This appeal raises a novel and important question

of construction under the “Quota Law” of May 19,

1921, c. 8,42 Stat. 5,as amended by Public Resolution

No. 55, approved May 11, 1922, ¢. 187, 42 Stat. 540.

Section 2 (d) of this Act contains a proviso which

excepts out of its provisions ministers of religion,

without specifically mentioning their wives, and chil-

dren under sixteen vears. The Immigration Act of

February 5, 1917, ¢. 29, 39 Stat. 874, contains in its

third section a proviso which excepts from certain of

its provisions ministers of religion, and specifically

extends the exception ‘to their legal wives or their

children under sixteen years of age, who shall accom-

pany them, or who subsequently may apply for ad-

mission to the United States.” (39 Stat. 877.)

NT ay ———

we.

The District Court and the Circuit Court of Appeals

held that the Acts of 1917 and 1921 were in pari

materia, that the specific exception contained in

Section 3 of the earlier act was indicative of an in-

tention, and declaratory of a policy, of Congress to

admit generally the wives and children of admissible,

aliens, and that in order to carry out the legislative

intent and purpose it is necessary to read into the

Act of 1921 a like exception.

We believe, and we shall endeavor to demonstrate

hereafter, that the Act of 1917 in no way affects the

Act of 1921, and is in no way involved in the instant

case. However, as the reasoning of the courts below

starts with it as a premise, and involves, as we be-

lieve, an erroneous construction of both acts, it is

necessary to examine in some detail the pertinent

provisions of both acts in limine. For the conven-

ience of the court Section 3 of the Act of 1917 and

the entire Act of 1921 are printed as an appendix to

this brief.

Act of 1917.

The Act of February 5, 1917, c. 29, 39 Stat. 874, isa

comprehensive enactment “To regulate the immigra-

tion of aliens to, and residence of aliens in, the United

States.” It repealed and replaced a number of earlier

acts, and was obviously designed to furnish a basic

act covering the entire field not already occupied by

existing treaties and the laws relating to exclusion of

Chinese. (See Section 38.)

Section 3 defines the classes of aliens who are to be

excluded. After enumerating idiots, imbeciles, feeble-

Re art

6

minded persons, epileptics, insane persons, paupers,

professional beggars, persons afflicted with contagious

diseases, criminals, polygamists, anarchists, prosti-

tutes, contract laborers, and others considered unde-

sirable, there is a description by parallels of latitude

and meridians of longitude, of a geographical zone

which includes a large part of Asia and the South Sea

Islands. This zone is commonly referred to as the

“ Asiatic barred zone.” With respect to this zone

it is provided that “ unless otherwise provided for by

existing treaties, persons who are nativesof * * *”

this zone, shall be excluded. And in order that this

clause should not be construed so as to set aside any

of the Chinese exclusion acts, it is said “and no alien

now in any way excluded from, or prevented from

entering, the United States shall be admitted to the

United States.’ [Italics ours.] Immediately follow-

ing these provisions relating to the “ Asiatic barred

zone” is this proviso, upon which the courts below

so strongly relied in their opinions:

The provision next foregoing, however, shall

not apply to persons of the following status or

occupations: Government officers, ministers or

religious teachers, missionaries, lawyers, physi-

cians, chemists, civil engineers, teachers, stu-

dents, authors, artists, merchants, and travel-

ers for curiosity or pleasure, nor to their legal

wives or their children under sixteen years of

age who shall accompany them or who sub-

sequently may apply for admission to the

United States, but such persons or their

legal wives or foreign-born children who fail to

maintain in the United States a status or occu-

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7

pation placing them within the excepted classes

shall be deemed to be in the United States con-

trary to law, and shall be subject to deporta-

tion as provided in Section nineteen of this Act.

This was construed by the Circuit Court of Appeals

as a general exception applicable to the entire sec-

tion. It is obvious, however, that this proviso

relates solely to the “Asiatic barred zone.” The

language is clear. It does not say “this section,

however, shall not apply to persons of the following

status or occupations.” It says “the provision next

foregoing, however, shall not apply, etc.’”” The rule

stated in United States v. Bernays, 158 Fed. 792, is

applicable:

A proviso should be construed with reference

to the subject matter of the sentence of which

it forms a part, unless it clearly appears to be

designed by the legislature for a broader or

more independent operation.

Here the grammatical construction requires that

it be limited to the “provision next foregoing.”

Furthermore, if it be construed as a general excep-

tion out of all the classes enumerated in the section,

it would operate to admit to this country travelers

for curiosity, artists, or students, notwithstanding the

fact that they might also be anarchists, polygamists,

criminals, or epileptics. The language requires no

such construction and certainly such an intention is

not to be imputed to Congress.

We think it clear, therefore, that the above-

quoted proviso must be construed so as to relate only

to the “ Asiatic barred zone.’

70945—23——2

8

Act of 1921.

We come now to the Quota Law of 1921 (May 19,

1921, c. 8, 42 Stat. 5, as amended by Public Resolu-

tion of May 11, 1922, c. 187, 42 Stat. 540). As its

title indicates, this is an act to limit rather than to

regulate the immigration of aliens. It provides in

Section 2 (a):

That the number of aliens of any nationality

who may be admitted under the immigration

laws to the United States in any fiscal year shall

be limited to 3 per centum of the number of

foreign-born persons of such nationality resi-

dent in the United States as determined by the

United States census of 1910.

Then follows an enumeration of certain classes

which “shall not be counted in reckoning any of the

percentage limits provided in this Act.” These

classes are entirely removed from the operation of

the law. Among them are “ (6) aliens from the so-

called Asiatic barred zone, as described in Section 3

of the Immigration Act.”

In a later paragraph of the same section (para-

graph (d)) it is provided that, “when the maximum

number of aliens of any nationality who may be

admitted in any fiscal year under this Act shall have

been admitted, all other aliens of such nationality,

except as otherwise provided in this Act, who may

apply for admission during the same fiscal year, shall

be excluded.”

These provisions disclose the wide difference in

purpose and character between this Act and that of

PORE NEE LS AES — ste a

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9

1917. Both relate to the same subject—immigra-

tion. They are in pari materia; they must be read

and construed together, but each has its separate and

distinct purpose. The provisions of the later act do

not repeal or set aside those of the earlier one, nor

does the earlier modify the clear language or alter the

manifest purpose of the later.

The Immigration Law (1917) defines and excludes

undesirable aliens because they are undesirable, but

it leaves our ports open to all others without regard

to their number. The Quota Law (1921), as a sup-

plement to it, limits the number of aliens of each

nationality, and when this “quota” has been ad-

mitted it excludes all others. The Immigration Law

regulates immigration by a process of selection. The

Quota Law limits it. The former is like a great net

cast across the stream of foreign immigration to

catch and exclude all the scum and rubbish which

may be borne upon its waters, while the latter is like

a floodgate which shuts off the stream entirely when

a certain measured quantity of water has passed.

A further difference between these enactments

should be noted. Exclusion under the Act of 1917 is

permanent, unless the disqualification be removed,

which in most cases is impossible; while exclusion

under the Act of 1921 is merely temporary. The Act,

in its present form, is limited to expire on June 30,

1924, after which all aliens otherwise admissible may

enter. Meanwhile anyone who has been so unfortu-

nate as to arrive after the quota is filled need only

wait until the next fiscal year, when, by applying in

iis Ret ead . . — .

>. re rosea svi AR

10

the early part of that year, he may make sure of

admission.

Section 4 of the Act of 1921 provides:

That the provisions of this Act are in addi

tion to, and not in substitution for, the pro

visions of the Immigration laws.

Had there been no specific provision this would

have been obvious from the general character and

purpose of the two acts. There is no conflict or In-

consistency between them. And certainly no ques-

tion arises such as is suggested in the opinion of the

Circuit Court of Appeals (R. 55) as to the repeal of

any of the provisions of the earlier act by those of the

later.

We come now to a consideration of the exception of

ministers from the Quota Law. It is contained in

Section 2 (d) and is as follows:

Provided further, That aliens returning from

a temporary visit abroad, aliens who are pro-

fessional actors, artists, lecturers, singers,

nurses, ministers of any religious denomination,

professors for colleges or seminaries, aliens

belonging to any recognized learned profes-

sion, or aliens employed as domestic servants,

may, if otherwise admissible, be admitted not-

withstanding the maximum number of aliens

of the same nationality, admissible in the same

month or fiscal year, as the case may be, shall

have entered the United States ; but aliens of

the classes included in this proviso who enter

the United States before such a maximum

number shall have entered shall (unless ex-

—

11

cluded by subdivision (a) from being counted)

be counted in reckoning the percentage limits

provided in this Aet. (Italics ours).

= [hus, ministers are excepted, but the Act makes

no eyception of their wives or children. It is this

proviso into which the courts below have read an

exception allowing the wives and children of minis-

ters to enter.

We shall have occasion hereafter to consider this

portion of the statute more carefully. We now call

attention only to the fact that the individuals enu-

merated in it are not excepted entirely out of the pro-

visions of the Act, as are those mentioned in Section

2 (a). If they arrive before the quota is filled, they

shall be counted. The exception does not seem,

therefore, to have been inserted because these per-

sons were considered pxiiicularly desirable, but

merely to avoid undue inconvenience io persons

pursuing certain particular occupations, whose con-

tracts or engagemerts might occasion their entry at

a time when the quota was exhausted. The same

reason which prompied their exception would not

extend to their wives or children.

If.

The opinion of the Circuit Court of Appeals.

In the light of this preliminary view of the statu-

tory provisions let us examine the decision of the

court below. The reasoning of the Circuit Court of

2% EO OA

12

Appeals in support of its conclusion is summarized

in the following portion of the opinion (R. 58):

Keeping in mind the above rules of inter-

pretation, we construe the Acts of 1917 and

1921 as one statute, the second act being, as

provided therein, an addition to and not 4

substitution for, the first act. The effect of

the second act is to add to the classes excluded

under the original act an additional class to

those previously excluded, but it does not

deprive those to whom a right of entry was

expressly given in the first act of the right so

granted. Neither the letter nor the spirit of

the second act calls for a construction imputing

to Congress the intention to create a condition

so unreasonable and absurd as to admit a

minister while at the same time excluding

the members of his family. An interpreta-

tion which would exclude the wife and chil-

dren would be based on a consideration of the

second act taken alone. But it can not be

construed alone, but must be interpreted upon

a general survey of both acts in all their parts.

And when so interpreted, we think the right of

entry given in the first act to the wife and

children of a minister has not been withdrawn

because of anything to be found in the second

act. If Congress intended to admit the min-

ister but to exclude his wife and children, it

has failed to indicate it by any clear and suffi-

ciently definite specific provision which justi-

fies us in holding that the right expressly

granted in the unrepealed Act of 1917 has been

withdrawn.

13

Thus, the court declares that an exception which

is not contained in the Act of 1921 must be read into

it, (1) because the relators had a right of entry into

the United States under the former act; (2) because

the supposed legislative intent and policy declared

by Congress in the former act, to avoid the separation

of families, requires such construction; and (3)

because the construction adopted by the immigration

officers would lead to results which are unjust, un-

reasonable, and absurd.

We think that each of these reasons is demonstrably

unsound, and in reply we submit that—

1. The exception of wives and children out of a

particular class of aliens excluded by the Act of 1917

does not give them a right of entry superior to that

of any other admissible alien.

2. The immigration laws of Congress disclose no

general policy to except from their provisions wives

and children.

3. The language of the Act of 1921 is clear and

should be enforced as Congress intended.

Ill.

The exception of wives and children out of a particular

class of aliens excluded by the Act of 1917 does not

give them a right of entry superior to that of any

other admissible alien.

We have already pointed out that the exception of

wives and children, which is contained in Section 3

of the Act of 1917, relates only to the Asiatic barred

zone, and that aliens from that zone are removed

14

entirely from the provisions of the Quota Law by

Section 2 (a), (6) thereof. We might further observe

that the relators in the instant case do not come

from that zone, and accordingly can not hope to

derive a benefit from that exception.

If, however, we join the Circuit Court of Appeals

in hurdling these obstacles, we come to the rather

curious position which that court took concerning

the rights of wives and children. At several places

the court refers in its opinion (R. 58) to “those to

whom a right of entry was expressly given” in the

Act of 1917. The theory is that because wives and

children of certain aliens were excepted out of the

excluded class mentioned in the Act of 1917, they

thereby acquired some vested right to enter the

United States, which could not thereafter be taken

from them excepting by some express and unequivo-

eal declaration by Congress. That there is no such

right of entry seems clear.

The Act of 1917 is an exclusion act. It defines

those classes of persons who shall not enter. Be-

cause of the generality of the terms used in describing

the excluded classes, it became necessary to except

certain persons out of those who otherwise would be

excluded. Manifestly such excepted persons are on

a parity with that very large class of admissible

aliens who did not fall within the excluded classes.

An alien who may be admissible because he comes

within the exception surely has no greater claim upon

our national hospitality than one who never came

———

15

within the excluded classes. None of them have a

“right of entry.” They are merely persons not

excluded. And when the provisions of the Quota

Law are applied, as they must be, to all of these

admissible aliens, there is no reason why one of them

rather than another should be admitted in violation

of the plain letter of that enactment.

IV.

The iminigration laws of Congress disclose no general

policy to except from their provisions wives and

children.

The Circuit Court of Appeals was of the opinion

that Congress had adopted a general policy of ad-

mitting the wives and children of admissible aliens in

order to preserve the unity of the family and avoid

the hardship consequent upon a separation of its

members. We have examined carefully the various

immigration acts and we find no such settled policy.

There are specific instances (see Secs. 3 and 22 of Act

of Feb. 5, 1917, c. 29, 39 Stat. 874, and Sec. 2 (d) of

Act of May 19, 1921, ¢. 8, 42 Stat. 5) in which they

are specially mentioned. These serve, however, only

to negative the idea of a general policy embracing all

cases.

The court below was aided in its search for such a

benevolent policy by a contemplation of the hard-

ships which might otherwise be visited upon women

and children by the operation of ourlaws. We submit,

however, that it is fundamentally erroneous to speak

70945—23——3

a

16

of our immigration statutes as requiring in any case

the separation of members of the same family. The

idea is based upon the assumption that some one or

more members of the family are obliged to enter the

country. Of course, this is not the fact. The law

imposes no obligation upon any alien to enter. If he

arrive at a port of the United States with his family,

and it be found that one or more members of his

family are not admissible under our laws, he is not

obliged to remain. Any separation of his family’

which may result in such circumstances follows from

his own act and not from the operation of our laws.

The same is true of the alien who, as in the instant

case, separates himself from his family first, estab-

lishes a residence here, and then sends for his family.

We would not for a moment discount the misfortune

which is occasioned by such circumstances, but we

do submit that it is not a misfortune of our making,

nor is it one which Congress was under any obligation

to avoid or has adopted any general policy to prevent.

There are undoubtedly many cases where fathers,

or mothers, or brothers, or sisters, or children may

be entitled to admission under the Act of 1917, but

other members of the family would not be because of

physical or mental defects, criminal tendencies, or

political theories. Zartarian v. Billings, 204 U. 8.

170. There is no policy to be found in that Act, or

in any other which has come to our notice, which

requires the admission of an entire family because

the head of the family is admissible.

ww

17

The humanitarian considerations here relied upon

have been urged in other cases, but this court, how-

ever desirous it may have been to avoid it, has not

hesitated to construe the immigration statutes so as

to exclude the wives or children of admissible aliens

when it, reached the conclusion that the plain terms

of the statute required such construction.

Zartarian v. Billings, 204 U.S. 170.

Low Wah Suey v. Backus, 225 U.S. 460.

Yee Won v. White, 256 U.S. 399.

¥

The language of the Act of 1921 is clear and should

be enforced as Congress intended.

The first sentence of Section 2 (d) of the Act of

1921 (42 Stat. 5) is clear:

When the maximum number of aliens of

any nationality who may be admitted in any

fiscal year under this Act shall have been

admitted all other aliens of such nationality,

except as otherwise provided in this Act, who

may apply for admission during the same

fiscal year shall be excluded.

Together with the quota provision (Sec. 2 (a)), it

fixes a definite and certain limit to the number of

aliens who may be admitted in any fiscal year.

This is in accord with the manifest purpose of the

Act, which was to stem the rising tide of European

immigration by fixing a numerical limit which should

not be exceeded under any circumstances, unless the

18

applicant for admission could bring himself clearly

within the exceptions.

In support of its construction the Circuit Court of

Appeals relies upon the familiar case of Holy Trinity

Church v. United States, 143 U.S. 457. But the dis-

tinction between that and the instant case is clear.

There the court had before it a statute which forbade

the entry of aliens ‘under contract or agreement to

perform labor” in the United States. From an exami-

nation of the evils which Congress sought by that act

to remedy, this court found that the contract of a

minister of religion to render services to a church

congregation was not within the spirit or purpose of

the act; and, construing the letter of the law to con-

form to its purpose, it held that the broad language

of the act might be cut down so as to embrace only

those cases which fell within that purpose.

In the instant case we have a statute whose pur-

pose is to limit the number of aliens entering the

country. The admission of any alien, not clearly

entitled to enter, tends to defeat this purpose.

Where the letter of the law extends beyond its

spirit and purpose, it may be construed so as to

embrace only cases within the purpose. But where

the letter coincides with the purpose it is not open

to any construction which will defeat that purpose.

The case of United States v. Mrs. Gue Lim, 176 U.S.

459, is also relied upon. A careful reading of that

opinion and of the Chinese treaty of 1880, however,

will disclose that it has no application to this case.

That decision was twice urged upon this court to

RSCTA AAT EP RETO AER PATS GRATES —

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19

support contentions similar to those made here, but

in each case the court pointed out clearly the distinc-

tion. Yee Won v. White, 256.U. 8. 399; Low Wah

Suey v. Backus, 225 U.S. 460.

But there is a further reason why the language

which excepts ministers only should not be extended

to embrace their wives and children. The Act bears

upon its face clear indications of the fact that Con-

gress carefully considered the generality of the lan-

guage employed and made such exceptions therefrom

as it deemed proper. Section 2 (a) contains eight

separate exemptions, each of which is carefully and

eecurately phrased. The first sentence of Section 2

(d) contains, out of an abundance of caution, the

words “except as otherwise provided in this act.”

Thereafter follow certain other exceptions, and the

conclusion of that paragraph contains the following

proviso (42 Stat. 6):

Provided further, That in the enforcement of

this Act preference shall be given so far as pos-

sible to the wives, parents, brothers, sisters,

children under eighteen years of age, and fian-

cees, * * * (2) of aliens now in the

United States who have applied for citizenship

in the manner provided by law * * *.

This fits precisely the case of the relators. It indi-

cates that Congress specially considered such wives

and children and made such provision for them as in

its judgment was proper. Surely in the light of this

proviso there is no room for the argument that Con-

= PTE TENN TMA hg FPR P SRE REP ata TESTE TS NR Ry ARTE ER

20

gress intended that these relators should be excepted

entirely out of the provisions of the law.

Where the Congress makes no exception from

the clear and certain declaration of a statute,

there is ordinarily a presumption that it

intended to make none. (McIver v. Ragan, 2

Wheat. 25, 29; Bank v. Dalton, 9 How. 522,

528; Varce v. Vance, 108 U. 8. 514, 521;

Railway Co. v. B’Shears, 59 Ark. 237, 244.)

By so much the more it is true that where

the law making body has made exceptions to

the general terms of an act, as in this instance,

the presumption is that it intended to make no

more. (United States v. Colorado & N. W. R.

Co., 157 Fed. 321, 332.)

In Lapina v. Williams, 232 U.S. 78, 92, it is said:

The Section contains its own specific pro-

visos and limitations, and these, on familiar

principles, strongly tend to negative any other

and implied exception.

And this is particularly true in the case at bar,

where, as we have already observed, there is a good

reason why actors, professors, musicians, ministers,

etc., should be excepted from this temporary exclu-

sion. and the same reason does not extend to their

wives and children.

Finally, it is urged that the letter of the law is

harsh and unreasonable, and its enforcement will lead

to unjust and absurd results. If the exclusion of

those who arrive after a quota is filled were a perma-

nent bar to their entry, there would be considerable

force to this argument. But it is not. The enforce-

- aoe

og

<a

eer"

21

ment of the Act results merely in delay and incon-

venience. We may weil say with this court in St.

Louis and Iron Mountain Ry. v. Taylor, 210 U. 8. 281,

295: ;

This argument is a dangerous one, and never

should be heeded when the hardship would be

occasional andexceptional. It would be better,

it was once said by Lord Eldon, to look hard-

ship in the face rather than break down the

rules of law.

The courts are not at liberty to substitute for the

will of the legislature their own ideas of the justice,

policy, or expediency of the law.

No mere omission, no mere failure to pro-

vide for contingencies, which it may seem

wise to have specifically provided for, justify

any judicial addition to the language of the

statute. (United States v. Goldenberg, 168

U. S. 95, 103.)

The purpose of the law is the ever-insistent

consideration in its interpretation. (United

States v. Antikamnia Company, 231 U. 8. 654,

667.)

To the same effect are United States v. First

National Bank, 234 U.S. 245; American R. R. Co. v.

Birch, 224 U.S. 547; and many other cases.

But whatever may be the results of the enforce-

ment of the letter of the law, the consequences of the

construction adopted by the Circuit Court of Appeals

are still more unreasonable and absurd, for they

would make of the Quota Law a mere scrap of paper.

Let us follow them.

a ee

22

If the exception be extended to include the wives

and children of ministers of religion, it must, by the

same reasoning, be extended to the husbands, wives,

and children of actors, artists, lecturers, singers,

nurses, professors, and domestic servants, for all of

these are included in the language of the act and are

on a parity with ministers. But it would not stop

here. The wives and children of all aliens admitted

before the Quota Law became effective, and who re-

turned for a temporary visit abroad, would have to be

admitted. In fact, this same Circuit Court of Appeals

has decided in a later case that this conclusion must

logically follow from the decision here. In United

States ex rel. Markarian v. Tod, 290 Fed. 198, it was

held that an Armenian who came to this country in

1913, declared his intention of becoming a citizen

and returned in 1921 for the purpose of being

married might bring back with him his Turkish wife,

notwithstanding the fact that the quota of her

nationals had been filled. The court said (p. 199):

The same reasoning which in the Gottlieb

case permitted the entrance of the extra quota

wives of ministers gives admission to the

extra quota wives of aliens returning from a

temporary visit abroad.

But it would not stop even at this absurd length.

The reasoning of the Circuit Court of Appeals would

require the admission of the wives and children of all

aliens who had entered before the Quota Law was

enacted as well as of all those who enter under the

23

Quota Law. It is easy to see how a quota which is

limited by the Act to 3 per cent might be doubled,

tripled, quadrupled, or even further enlarged under

such a construction. If the heads of families do but

come first and fill the quota, and thereafter send for

their wives and children, we shall have to admit not

3 per cent but 10, 15, or 20 per cent. Thus, the con-

struction adopted by the court below would utterly

defeat the purpose of Congress and convert the

Quota Law from an act to limit immigration to so

much legislative nonsense.

CONCLUSION.

This brief has extended to somewhat greater

length than would ordinarily be justified in the

discussion of a case of this character. The unfortu-

nate circumstances of the relators, however, compel

our interest and warrant a thorough and careful

examination of the question. And, on the other

hand, the consequences which must logically follow

from the reasoning of the court below would be fatal

to the purpose of thé Quota Law.

It seems to us abundantly clear (1) that the

Immigration Act of 1917 does not in any way limit

or modify the terms of the Quota Law of 1921;

(2) that wives and children of ministers did not

acquire, by virtue of the proviso in the former act,

any right of entry into the United States superior

to that of any other admissible alien; (3) that while

Congress has frequently extended special provisions

in favor of wives, children, and other relatives, it

24

has never adopted any settled policy to admit them,

nor has it provided for their admission when to do

so would defeat the purpose of the statutes; and

(4) that there is no possible construction of the

Quota Law which will admit the relators without

at the same time defeating the clear purpose of the

Act and rendering its provisions worthless and

ineffective as a check to the increasing flood of

foreign immigration. We reluctantly reach the con-

clusion that the decision of the Circuit Court of

Appeals was in error and should be reversed.

Respectfully submitted.

JAMES M. Beck,

Solicitor General.

GEORGE Ross HULL,

Special Assistant to the Attorney General.

NOVEMBER, 1923.

APPENDIX.

Section 3 of the Immigration Act.

[Act of February 7, 1917, c. 29, 39 Stat. 874, entitled ‘‘An Act To regulate

the immigration of aliens to, and residence of aliens in, the United

States.’’|

Src. 3. That the following classes of aliens shall

be excluded from admission into the United States:

All idiots, imbeciles, feeble-minded persons, epilep-

ties, insane persons; persons who have had one or

more attacks of insanity at any time previously ;

persons of constitutional psychopathic inferiority ;

persons with chronic alcoholism; paupers; profes-

sional beggars: vagrants; persons afflicted with tuber-

culosis in any form or with a loathsome or dangerous

contagious disease; persons not comprehended within

any of the foregoing excluded classes who are found

to be and are certified by the examining surgeon as

being mentally or physically defective, such physical

defect being of a nature which may affect the ability

of such alien to earn a living; persons who have

been convicted of or admit having committed a

felony or other crime or misdemeanor involving

moral turpitude; polygamists, or persons who prac-

tice polygamy or believe in or advocate the practice

of polygamy; anarchists, or persons who believe in

or advocate the overthrow by force or violence of

the Government of the United States, or of all forms

of law, or who disbelieve in or are opposed to organ-

ized government, or who advocate the assassination

of public officials, or who advocate or teach the

(25)

26

unlawful destruction of property; persons who are

members of or affiliated with any organization enter-

taining and teaching disbelief in or opposition to

organized government, or who advocate or teach the

duty, necessity, or propriety of the unlawful assault-

ing or killing of any officer or officers, either of

specific individuals or of officers generally, of the

Government of the United States or of any other

organized government, because of his or their official

character, or who advocate or teach the unlawful

destruction of property; prostitutes, or persons com-

ing into the United States for the purpose of prosti-

tution or for any other immoral purpose; persons

who directly or indirectly procure or attempt to

procure or import prostitutes or persons for the

purpose of prostitution or for any other immoral

purpose; persons who are supported by or receive

in whole or in part the proceeds of prostitution;

persons hereinafter called contract laborers, who

have been induced, assisted, encouraged, or solicited

to migrate to this country by offers or promises of

employment, whether such offers or promises are

true or false, or in consequence of agreements, oral,

written or printed, express or implied, to perform

labor in this country of any kind, skilled or unskilled ;

persons who have come in consequence of advertise-

ments for laborers printed, published, or distributed

in a foreign country; persons likely to become a

public charge; persons who have been deported under

any of the provisions of this act, and who may again

seek admission within one year from the date of

such deportation, unless prior to their reembarkation

at a foreign port or their attempt to be admitted

from foreign contiguous territory the Secretary of

Labor shall have consented to their reapplying for

eee

| admission; persons whose tickets or passage is paid

for with the money of another, or who are assisted

by others to come, unless it is affirmatively and

satisfactorily shown that such persons do not belong

to one of the foregoing excluded classes; persons

whose ticket or passage is paid for by any corpora-

tion, association, society, municipality, or foreign

Government, either directly or indirectly; stowaways,

except that any such stowaway, if otherwise ad-

missible, may be admitted in the discretion of the

Secretary of Labor; all children under sixteen years

of age, unaccompanied by or not coming to one or

both of their parents, except that any such children

may, in the discretion of the Secretary of Labor, be

almitted if in his opinion they are not likely to become

a public charge and are otherwise eligible; unless

otherwise provided for by existing treaties, persons

who are natives of islands not possessed by the

United States adjacent to the continent of Asia, situate

south of the twentieth parallel latitude north, west

of the one hundred and sixtieth meridian of longi-

tude east from Greenwich, and north of the tenth

parallel of latitude south, or who are natives of any

country, province, or dependency situate on the con-

tinent of Asia west of the one hundred and tenth

meridian of longitude east from Greenwich and east

of the fiftieth meridian of longitude east from Green-

wich and south of the fiftieth parallel of latitude

north, except that portion of said territory situate

between the fiftieth and the sixty-fourth meridians

of longitude east from Greenwich and the twenty-

fourth and thirty-eighth parallels of latitude north,

and no alien now in any way excluded from, or pre-

vented from entering, the United States shall be

admitted to the United States. The provision next

28

foregoing, however, shall not apply to persons of the

following status or occupations: Government officers,

ministers or religious teachers, missionaries, lawyers,

physicians, chemists, civil engineers, teachers, stu-

dents, authors, artists, merchants, and travelers for

curiosity or pleasure, nor to their legal wives or

their children under sixteen years of age who shall

accompany them or who subsequently may apply

for admission to the United States, but such persons

or their legal wives or foreign-born children who fail

to maintain in the United States a status or occupa-

tion placing them within the excepted classes shall

be deemed to be in the United States contrary to

law, and shall be subject to deportation as provided

in section nineteen of this act.

That after three months from the passage of this

act, in addition to the aliens who are by law now

excluded from admission into the United States,

the following persons shall also be excluded from

admission thereto, to wit:

All aliens over sixteen years of age, physically

capable of reading, who can not read the English

language, or some other language or dialect, includ-

ing Hebrew or Yiddish: Provided, That any admis-

sible alien, or any alien heretofore or hereafter

legally admitted, or any citizen of the United States,

may bring in or send for his father or grandfather

over fifty-five years of age, his wife, his mother, his

grandmother, or his unmarried or widowed daugh-

ter, otherwise admissible, whether such relative

can read or not; and such relative shall be per-

mitted to enter. That for the purpose of ascer-

taining whether aliens can read the immigrant

inspectors shall be furnished with slips of uniform

size, prepared under the direction of the Secretary

eee

29

of Labor, each containing not less than thirty nor

more than forty words in ordinary use, printed in

plainly legible type in some one of the various lan-

guages or dialects of immigrants. Hach alien may

designate the particular language or dialect in which

he desires the examination to be made, and shall

be required to read the words printed on the slip

in such language or dialect. That the following

classes of persons shall be exempt from the operation

of the illiteracy test, to wit: All aliens who shall

prove to the satisfaction of the proper immigration

officer or to the Secretary of Labor that they are seck-

ing admission to the United States to avoid religious

persecution in the country of their last permanent

residence, whether such persecution be evidenced

by overt acts or by laws or governmental regulations

that discriminate against the alien or the race to

which he belongs because of his religious faith;

all aliens who have been lawfully admitted to the

United States and who have resided therein con-

tinuously for five years, and who return to the United

States within six months from the date of their de-

parture therefrom; all aliens in transit through the

United States; all aliens who have been lawfully

admitted to the United States and who later shall

go in transit from one part of the United States to

another through foreign contiguous territory: Pro-

vided, That nothing in this act shall exclude, if

otherwise admissible, persons convicted, or who admit

the commission, or who teach or advocate the com-

mission, of an offense purely political: Provided

further, That the provisions of this act, relating to

the payments for tickets or passage by any corpora-

tion, association, society, municipality, or foreign

Government shall not apply to the tickets or passage

30

of aliens in immediate and continuous transit through

the United States to foreign contiguous territory:

Provided further, That skilled labor, if otherwise

admissible, may be imported if labor of like kind

unemployed can not be found in this country, and

the question of the necessity of importing such

skilled labor in any particular instance may be deter-

mined by the Seeretary of Labor upon the application

of any person interested, such application to be

made before such importation, and such determina-

tion by the Secretary of Labor to be reached after

a full hearing and an investigation into the facts of the

case: Provided further, That the provisions of this law

applicable to contract labor shall not be held to

exclude professional actors, artists, lecturers, singers,

nurses, ministers of any religious denomination,

professors for colleges or seminaries, persons be-

longing to any recognized learned profession, or

persons employed as domestic servants: Provided fur-

ther, That whenever the President shall be satisfied

that passports issued by any foreign Government to

its citizens or subjects to go to any country other

than the United States, or to any insular possession

of the United States or to the Canal Zone, are being

used for the purpose of enabling the holder to come

to the continental territory of the United States

to the detriment of labor conditions therein, the

President shall refuse to permit such citizens or sub-

jects of the country issuing such passports to enter

the continental territory of the United States from

such other country or from such insular possession

or from the Canal Zone: Provided further, That aliens

returning after a temporary absence to an unrelin-

quished United States domicile of seven consecutive

ol

years may be admitted in the discretion of the Secre-

tary of Labor, and under such conditions as he may

prescribe: Provided further, That nothing in the con-

tract-labor or reading-test provisions of this act shall

be construed to prevent, hinder, or restrict any alien

exhibitor, or holder of concession or privilege for any

fair or exposition authorized by act of Congress, from

bringing into the United States, under contract, such

otherwise admissible alien mechanics, artisans, agents,

or other employees, natives of his country as may

be necessary for installing or conducting his exhibit

or for preparing for installing or conducting any busi-

ness authorized or permitted under any concession

or privilege which may have been or may be granted

by any such fair or exposition in connection there-

with, under such rules and regulations as the Com-

missioner General of Immigration, with the approval

of the Secretary of Labor, may prescribe both as

to the admission and return of such persons: Pro-

vided further, That the Commissioner General of

Immigration, with the approval of the Secretary of

Labor, shall issue rules and prescribe conditions,

including exaction of such bonds as may be neces-

sary, to control and regulate the admission and re-

turn of otherwise inadmissible aliens applying for

temporary admission: Provided further, That nothing

in this act shall be construed to apply to accredited

officials of foreign Governments, ; r to their suites,

families, or guests.

THE QUOTA LAW.

[Act of May 19, 1921, c. 8, 42 Stat. 5, as amended May 11, 1922, c. 187, 42

Stat. 540, entitled ‘‘An Act to limit the immigration of aliens into the

United States.’’]

Resolved by the Senate and House of Representatives

of the United States of America in Congress assembled,

That the operation of the Act entitled “An Act to

limit the immigration of aliens into the United

States,” approved May 19, 1921, is extended to

and including June 30, 1924.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress as-

sembled, That as used in this Act

The term “United States’? means the United

States, and any waters, territory, or other place

subject to the jurisdiction thereof except the Canal

Zone and the Philippine Islands; but if any alien

leaves the Canal Zone or any insular possession of

the United States and attempts to enter any other

place under the jurisdiction of the United States

nothing contained in this Act shall be construed

as permitting him to enter under any other condi-

tions than those applicable to all aliens.

The word “alien”? includes any person not a

native-born or naturalized citizen of the United

States, but this definition shall not be held to in-

clude Indians of the United States not taxed nor

citizens of the Islands under the jurisdiction of the

United States.

(32)

oO"

30

The term “Immigration Act’? means the Act of

February 5, 1917, entitled “An Act to regulate

the immigration of aliens to, and the residence of

aliens in, the United States’’; and the term “immi-

gration laws” includes such Act and all laws, con-

ventions, and treaties of the United States relating

to the immigration, exclusion, or expulsion of aliens.

Sec. 2. (a) That the number of aliens of any

nationality who may be admitted under the immi-'

gration laws to the United States in any fiscal year

shall be limited to 3 per centum of the number of

foreign-born persons of such nationality resident in

the United States as determined by the United

States census of 1910. This provision shall not

apply to the following, and they shall not be counted

in reckoning any of the percentage limits provided

in this Act: (1) Government officials, their families,

attendants, servants, and employees; (2) aliens in

continuous transit through the United States; (3)

aliens lawfully admitted to the United States who

later go in transit from one part of the United

States to another through foreign contiguous ter-

ritory; (4) aliens visiting the United States as

tourists or temporarily for business or pleasure;

(5) aliens from countries immigration from which

is regulated in accordance with treaties or agree-

ments relating solely to immigration; (6) aliens from

the so-called Asiatic barred zone, as described in

section 3 of the Immigration Act; (7) aliens who

have resided continuously for at least five years

immediately preceding the time of their application

for admission to the United States in the Dominion

of Canada, Newfoundland, the Republic of Cuba,

the Republic of Mexico, countries of Central and

South America, or adjacent islands; or (8) aliens

34

under the age of eighteen who are children of citie

zens of the United States.

(b) For the purposes of this Act nationality shall

be determined by country of birth, treating as sepa-

rate countries the colonies or dependencies for which

separate enumeration was made in the United States

census of 1910.

(c) The Secretary of State, the Secretary of

Commerce, and the Secretary of Labor, jointly, shall,

as soon as feasible after the enactment of this Act,

prepare a statement showing the number of persons

of the various nationalities resident in the United

States as determined by the United States census

of 1910, which statement shall be the population

basis for the purposes of this Act. In case of changes

in political boundaries in foreign countries occurring

subsequent to 1910 and resulting (1) in the creation

of new countries, the Governments of which are

recognized by the United States, or (2) in the transfer

of territory from one country to another, such

transfer being recognized by the United States,

such officials, jointly, shall estimate the number of

persons resident in the United States in 1910 who

were born within the area included in such new

countries or in such territory so transferred, and

revise the population basis as to each country in-

volved in such change of political boundary. For

the purpose of such revision and for the purposes

of this Act generally aliens born in the area included

in any such new country shall be considered as

having been born in such country, and aliens born

in any territory so transferred shall be considered

as having been born in the country to which such

territory was transferred.

35

(d) When the maximum number of aliens of any

nationality who may be admitted in any fiscal vear

under this Act shall have been admitted all other

aliens of such nationality, except as otherwise pro-

vided in this Act, who may apply for admission during

the same fiscal year shall be excluded: Provided,

That the number of aliens of any nationality who

may be admitted in any month shall not exceed

20 per centum of the total number of aliens of such

nationality who are admissible in that fiscal year:

Provided further, That aliens returning from a tem-

porary visit abroad, aliens who are_ professional

actors, artists, lecturers, singers, nurses, ministers of

any religious denomination, professors for colleges or

seminaries, aliens belonging to any recognized learned

profession, or aliens employed as domestic servants,

may, if otherwise admissible, be admitted notwith-

standing the maximum number of aliens of the same

nationality admissible in the same month or fiscal

year, as the case may be, shall have entered the

United States; but aliens of the classes included in

this provisio who enter the United States before such

maximum number shall have entered shall (unless

excluded by subdivision (a) from being counted) be

counted in reckoning the percentage limits provided

in this Act: Provided further, That in the enforcement

of this Act preference shall be given, so far as possible,

to the wives, parents, brothers, sisters, children under

eighteen years of age, and fiancées (1) of citizens of

the United States, (2) of aliens now in the United

States who have applied for citizenship in the manner

provided by law, or (3) of persons eligible to United

States citizenship who served in the military or naval

forces of the United States at any time between

April 6, 1917, and November 11, 1918, both dates

36

inclusive, and have been separated from such forces

under honorable conditions.

Sec. 3. That the Commissioner General of Immi-

gration, with the approval of the Secretary of Labor,

shall, as soon as feasible after the enactment of this

Act, and from time to time thereafter, prescribe rules

and regulations necessary to carry the provisions of

this Act into effect. He shall, as soon as feasible

after the enactment of this Act, publish a statement

showing the number of aliens of the various national-

ities who may be admitted to the United States

between the date this Act becomes effective and the

end of the current fiscal year, and on June 30 there-

after he shall publish a statement showing the number

of aliens of the various nationalities who may be

admitted during the ensuing fiscal year. He shall

also publish monthly statements during the time this

Act remains in force showing the number of aliens of

each nationality already admitted during the then

current fiscal year and the number who may be

admitted under the provisions of this Act during the

remainder of such year, but when 75 per centum of

the maximum number of any nationality admissible

during the fiscal year shall have been admitted such

statements shall be issued weekly thereafter. All

statements shall be made available for general

publication and shall be mailed to all transportation

companies bringing aliens to the United States who

shall request the same and shall file with the Depart-

ment of Labor the address to which such statements

shall be sent. The Secretary of Labor shall also

submit such statements to the Secretary of State,

who shall transmit the information contained therein

to the proper diplomatic and consular officials of the

United States, which officials shall make the same

37

available to persons intending to emigrate to the

United States and to others who may apply.

Sec. 4. That the provisions of this Act are in

addition to and not in substitution for the provisions

of the immigration laws.

Src. 5. That this Act shall take effect and be en-

forced fifteen days after its enactment(except sections

1 and 3 and subdivisions (b) and (c) of section 2,

which shall take effect immediately upon the enact-

ment of this Act) and shall continue in force until

June 30, 1922, and the number of aliens of any

nationality who may be admitted during the remain-

ing period of the current fiscal year, from the date

when this Act becomes effective to June 30, shall be

limited in proportion to the number admissible during

the fiscal year 1922.

Sec. 6. That it shall be unlawful for any person,

including any transportation company other than

railway lines entering the United States from foreign

contiguous territory, or the owner, master, agent, or

consignee of any vessel, to bring to the United States

either from a foreign country or any insular posses-

sion of the United States any alien not admissible

under the terms of this Act or regulations made there-

under, and if it appears to the satisfaction of the Sec-

retary of Labor that any alien has been so brought,

such person or transportation company, or the mas-

ter, agent, owner, or consignee of any such vessel,

shall pay to the collector of customs of the customs

district in which the port of arrival is located the

sum of $200 for each alien so brought, and in addi-

tion a sum equal to that paid by such alien for his

transportation from the initial point of departure,

indicated in his ticket, to the port of arrival, such

latter sum: to be delivered by the collector of customs

38

to the alien on whose account assessed. No vessel

shall be granted clearance papers pending the deter-

mination of the liability to the payment of such fine,

or while the fine remains unpaid, except that clear-

ance may be granted prior to the determination of

such question upon the deposit of a sum sufficient to

cover such fine. Such fine shall not be remitted or

refunded unless it appears to the satisfaction of the

Secretary of Labor that such inadmissibility was not

known to, and could not have been ascertained by

the exercise of reasonable diligence by, such person

or the owner, master, agent, or consignee of the

vessel, prior to the departure of the vessel from the

last seaport in a foreign country or insular possession

of the United States.

INDEX.

PAGE

ee Oa SO GORE 6 kiicckcacscaaaeaneae 1

Question and Statutes involved.......... 2, 3

Argument:

I. The decision of the Cireuit Court of

Appeals announces a sound principle

of construction, and is a reasonable,

fair and just interpretation of the

immigration acts in question, and

clearly typifies the spirit and inten-

oe SR re aera 3

II. The doctrine of sensible construction

: and implied exception .............. 20

can, Tee Act of May 10, 1081 2... kc cccse 26

NN ona 6 it ad atpad a AOR WAS a ee 29

Supplement :

Treaty with China, Nov. 17, 1880, 22

Mtat OO. Artie EE... oss csccsas 11, 15, 30

Chinese Exclusion Act, July 5, 1884, 28

ee: Se MO, Ws pike cho vow nus 8, 11, 15, 30

Contract Labor Law, Feb. 26, 1885, 23

Stat. 332, Bee. 1, & ........ 8, 9, 10, 33

Convention with China, Mar. 17, 1894,

98 Stat. 1211, Article ITI .......... 15, 32

Berk o< : wont eae. Ce

il

AUTHORITIES.

Cases:

PAGE

U. S. ex rel Gottlieb v. Commissioner of

Immigration (D. C.) 278 Fed. 564 ....2, 3

Idem, (C. C. A.) 285 Fed. eae: Fas

U.S. ex rel Markarian v. Tod, 290

ea wa sbeebs cas ne seeeces 8

United States v. Bernays, 158 Fed. ige 63

Church of Holy Trinity v. U. S. 148 U.

eee 9, 21, 29

Re Chung Toy Ho, 42 Fed,

eo 11, 12-14, 24, 29

Re Tung Yeong, 19 Fed. 184 ......---- 15

U.S. v. Mrs. Gue Lim, 176 U. 8.

acces edsees ss» ss 15-20, 23, 29

United States v. Kirby, 7 Wall. .... 2

U.S. ex rel Andersen v. Burke, 99 Fed.

en casas csctsssscesess 22

Lou Ow Bew v. United States, 144 2. &.

ee ic undcdeeseessecseees 22

United States v. Barnes, 222 U. S. 513. 23

City of Lexington v. Commercial Bank,

130 Mo. App. 687 ......-----+++55> 23-24

United States v. Antikamnia Co. 231 U.

gee 26

Statutes:

Act of Feb. 5, 1917, 39 Stat. 874, ¢.

cc tacestaeeees 2, 5, 9, 10, 25

(Petitioner’s brief, pp. 25-31)

Act of May 19, 1921, 42 Stat.

RE cad undnwcccedetccccuseecss 2, 4, 20

(Petitioner’s brief, pp. 32-38)

References:

Report of Senate Committee on Immi-

vration, No. 17, Apr. 28, 1921 (rele-

vant parts) .......0. 6-2 eee eee 27, 28

IN THE

Supreme Court of the United States

Ocroper Term, 1923.

(COMMISSIONER OF IMMIGRATION |

or Porr or New York,

Petitioner,

Girre, Gorruies and IsRAEL

GOTTLIEB,

Respondents.

BRIEF ON BEHALF OF THE

RESPONDENTS.

Statement.

This cause comes to this court upon a writ

of certiorari directed to the United States Cireuit

Court of Appeals, for the Second Cireuit, to re-

view its determination (Tr. p. 59-60; fols. 64-

65), affirming an order of the District Court of

the United States, for the Southern District of

New York (Tr. p. 58-59; fols. 61-62), sustaining

Ett I

epee

' ;

a writ of habeas corpus sued out by the re-

spondents, releasing and discharging them from

the custody of the petitioner, and admitting them

into the United States (Tr. fol. 129), after they

had been ordered exeluded as coming here in

violation of the Act of May 19, 1921, in that they

were natives of a country whose quota had been

filled (Tr. fois. 54-56), and after the affirmance

of sueh determination by the Secretary of Labor

(Tr. fol. 57), the respondents being the wife and

child (Tr. fols. 7 to 8) of a minister and legally

admittcd alien resident of the United States, and

a declarant (Tr. fols. 9 to 10).

Question and Statutes Involved.

The question presented is whether under the

Immigration Act of May 19, 1921, Section 2 (d),

42 Stat. ce. 8, p. 6, excepting ministers of any

religious denomination from the quota provisions

of that Act, Section 4, providing that it is in ad-

dition to the provisions of the immigration laws

and Section 3 of the Act of February 5, 1917

(39 Stat. 874, 876),* excepting ministers and their

legal wives or children under sixteen years of

age from the exclusion provisions of that Act,

a minister’s wife and children, as well as him-

self are excepted from the quota provisions

(see Petitioner’s Assignment of Errors ‘‘Sec-

ond’’, Tr. fols. 132-133; Petitioner’s brief, p. 3).

The District Court held (278 Fed. 564, 565):

«* * * The entire scope of the legislation

prevents the narrow interpretation.”’

* * * * *

+ Set out at length, Appendix, Petitioner’s brief, PP. 25-38,

inclusive.

3

«* * * The Act of 1921, interpreted in the

light of the controlling Immigration Act

of 1917, should be construed so as to in-

clude within the exceptions from the quota

provisions the wife and children under six-

teen years of a minister, as well as the

minister himself.’’ (Tr. fols. 118, 119).

The Cireuit Court of Appeals affirmed this

ruling, and it is the correctness of this ruling

which is challenged by the petitioner in this

court.

Argument and Law.

I.

The decision of the Circuit Court of

Appeals announces a sound principle of

construction, and is a reasonable, fair

and just interpretation of the immigra-

tion acts in question, and clearly typi-

fies the spirit and intention of Con-

gress.

The Act of May 19, 1921, provides that the

number of aliens of any nationality who may be

admitted under the immigration laws to the

United States in any fiscal year, shall be limited

to three per centum of the number of foreign

born persons of such nationality resident in the

United States as determined by the United

States Census of 1910. It is further provided,

ee AREER SEAN IN OE REY HEMP Ey N19

4

in Section 2 (d) of said Act, that the following

persons are excepted from its operation:

“Provided further, That aliens return-

ing from a temporary visit abroad, aliens

who are professional actors, artists, lectur-

ers, singers, nurses, misters of any reli-

gious denomination, professors for colleges

or seminaries, aliens belonging to any recog-

nized learned profession, or aliens employed

as domestic servants, may, if otherwise ad-

missible, be admitted notwithstanding the

maximum number of aliens of the same

nationality admissible in the same month

or fiseal year, as the case may he, shall have

entered the United States * * *”’ (Italics

ours).

The Act of May 19, 1921, is entitled “An Act

to limit the immigration of aliens into the United

States,’’ and Section 2 (a) thereof declares the

number admissible in any fiscal year. But Sec-

tion 4 thereof provides:

“That the provisions of this Act are in

addition to and not in substitution for the

provisions of the immigration laws.’’

Thus, the Act of February 9, 1917, which is

the basic immigration law was not repealed,

but continued in force and effect, the Act of

May 19, 1921, expressly stating, in said Section

4, that it was

‘<* * * not in substitution for the provisions

of the immigration laws.’’ (Italics ours).

_ er,

5

Section 3 of the Act of February 59, 1917,

enumerates the cxeluded classes. Said Section

also provides that it does not apply to ministers,

nor to their legal wives, nor their children un-

der sixteen years of age, who accompany them,

or who subsequently may apply for admission

to the United States.

Solomon Gottlieb, the husband and father, re-

spectively, of the respondents is a minister of

a religious denomination, and the respondents

were coming to permanently reside here with

him (Tr. fols. 11-12). Therefore, it was and is

contended that under Section 3 of the Act

of February 5, 1917, they had an unrestricted

right to enter since they did not come within

the excluded classes.

Under the Congressional enactment of May

19, 1921, Section 2 (d), ministers of any religious

denomination are excepted from the operation

of the provisions of that Act, and this legisla-

tion, as shown, did not repeal that part of See-

tion 3 of the Act of February 5, 1917, which

we contend accords the right of entry generally

to the legal wife or children under sixteen years

of age of a minister.

The petitioner’s contention is that under the

Act of May 19, 1921 (H. R. 4075), the respond-

ents are mandatorily excludable, and that no

exception whatever was made so as to exclude

from the operation of its provisions, the wives

and ehildren of ministers.

In affirming the determination of the District

Court, the Cireuit Court of Appeals said (285

Fed, 300):

«“* * * We construe the acts of 1917 and

1921 as one statute, the second act being,

6

as provided therein, an addition to and not

a substitute for the first act. The effect

of the second act is to add to the classes

excluded under the original aet an addi-

tional class to those previously excluded,

but it does not deprive those to whom a

right of entry was expressly given in the

first act of the right so granted, Neither

the letter nor the spirit of the second act

calls for a construction imputing to Con-

eress the intention to create a condition so

unreasonable and absurd as to admit a min-

ister while at the same time excluding the

members of his family. An interpretation

which would cxelude the wife and children

would be based on a consideration of the

second act taken alone. But it cannot be

construed alone, but must be interpreted up-

on a general survey of both acts in all their

parts. And when so interpreted we think

the right of entry given in the first act

to the wife and children of a minister has

not been withdrawn beeause of anything to

be found in the second act. If Congress

intended to admit the minister, but to ex-

clude his wife and children, it has failed to

indieate it by any clear and_ sufficiently

definite specifie provision which justifies us

in holding that the right expressly granted

in the unrepealed act of 1917 has been

withdrawn.’’ (Tr. fol. 60, p. 58) (Italies

ours).

Petitioner contends that this was an erroneous

construction, asserting that the proviso in See-

tion 3 of the Act of February 5, 1917, excepting

7

ministers, their wives and children under six-

teen years of age who accompany them or who

subsequently may apply for admission to the

United States, is not a general exception ap-

plical le to the entire section, but that this pro-

viso relates solely to what has been commonly

termed the ‘Asiatic Barred Zone’? (Petitioner’s

brief, p. 7), and to emphasize the contention it

is said that said excepting provision follows im-

mediately those provisions relating to the Asiatic

Barred Zone (Petitioner’s brief, p. 6). Attention

is directed to the point by asserting: ‘*The lan-

guage is elcar. It does not say ‘this section,

however, shall not apply to persons of the fol-

lowing status or occupations.’ It says ‘the pro-

vision next foregoing, however, shall not apply,

ete.’ ? (Petitioner’s brief, p. 7). Special atten-

tion is called to Subdivision (6) of the Act of

1921, providing that aliens coming from the so-

‘alled Asiatic Barred Zone are not to be counted

in reckoning any of the percentage limits pro-

vided in said Act (Petitioner’s brief, p. 8). The

claim is untenable.

If the exception is not to be regarded as gen-

eral and applicable to the entire section, it re-

sults in a right of entry being granted to the

wives and children of ministers coming from the

barred zone, while it denies a similar right of

entry to persons of the same class coming from

non-barred geographical areas. The absurdity of

such a construction can hardly be doubted.

, It is said that the Quota Law of 1921 is an

Act to limit rather than to regulate the immi-

gration of aliens, which is said to be the pur-

> pose of the Act of 1917 (Petitioner’s brief, p.

8). We confess ourselves unable to appreciate

the distinetion, if any really exists, for both

See OR TER LOST AI aS aa geet eR INE ee

8

Acts are ip their true sense restrictive as well

as regulatory. The Chinese Exclusion Act * and

the Contract Labor Law ¢{ were as much limita-

tions on the extent of the permissible immigra-

tion to the United States, as are the Acts of 1917

and 1921. The question is not one of distinetion

between regulation and limitation, but whether

the law involved, in the light of its object, fairly

and sensibly construed, excludes the family of

a minister, where he is himself expressly ex-

empted from the barrier to admission,

The argument is advanced that if the con-

struction of the Cireuit Court of Appeals is to

be upheld, it will extend to absurd lengths, and

United States ex rel Markarian vs. Tod, 290

Fed. 198, is cited, where it was held by the same

court (following the reasoning in the instant

ease),” that an alien returning from abroad

where he had gone for the purpose of being

married, might bring back with him his wife,

notwithstanding the fact that the quota of her

nationals had been filled, and that this would

require the admission of aliens who had en-

tered before the passage of the Quota Law, as

well as of all those who enter under it (Peti-

tioner’s brief, p. 22). We do not share the

view adopted by the Cireuit Court of Appeals

in the Markarian case, to justify the alien’s

right to enter, and doubt the correctness of the

application of the ruling in the case at bar to

that one, because the Act does not exempt the

wife of an alien who goes abroad to marry, and

it might very well furnish a medium for cir-

cumvention of quota allotment. The case at bar

is distinguishable not only in point of facts, but

Supplement, page 30.

Supplement, page 33.

Ante pages 5-6.

++ -1-

HLL Tit LINEN NIT TERT OEE ttl

9

by virtue of the express exemption, in Section 3

of the Act of 1917, applicable to ministers and

their wives and children, and the further ex-

press exemption contained in the Act of 1921,

applicable to ministers.

Petitioner stresses the literal language of the

statute, i. ¢., the ‘‘provision next foregoing’’,

as indicative of the intention of Congress not to

make the exception a general one and applicable

to the entire section, citing U. S. vs. Bernays,

158 Fed, 792, where it was held that a proviso

should be construed with reference co the subject

matter of the sentence of which it forms a

part (Petitioner’s brief, p. 7). This is true

as a bare statement of a rule of statutory con-

struction but it must be manifest that it is not

applicable to or decisive of every given case.

The point made is not new, as may be seen

from the case of Church of the Holy Trinity vs.

United States, 148 U. S. 457, which involved

the construction of the Act of February 26,

1885, c. 164, 28 Stat. 332, which in terms pro-

hibited the importation and migration of

aliens under contract or agreement to per-

form labor in the United States. *The language

of the Act was clear and unequivocal. It pro-

hibited the importation of aliens under contract

for services “of any kind’’, It contained, at

the end of the fifth section, a specifie proviso

that the provisions of that Act should not apply

to professional actors, artists, lecturers or

singers, nor to persons employed strictly as

personal or domestic servants, * * just as Section

* See Supplement, p. 33, where the relevant portions of the

Act appear verbatim.

** Vide infra, p. 33.

a TREY INN RIR RTI MIRE TUE TB RR ESN SHEET AA MURR

Pe ee

10

® of the Act of February 5, 1917, contains a pro

viso excepting Government officers, ministers or

religious teachers, missionaries, lawyers, physi-

cians, chemists, civil engineers, teachers,

students, authors, merchants, and travellers for

curiosity or pleasure, and their legal wives and

children under sixteen years of age who accom-

pany them, or who subsequently apply for ad-

mission to the United States. No exception

whatever was made in the Act of February 26,

1885, with regard to the employment of a

clergyman. ‘The Act expressly declared the

persons to whom it was inapplicable. Yet this

court held the Act inapplicable to a clergyman,

declining to follow the literal wording of the

Statute, and declaring that the Act should be

construed according to its spirit, further holding

that it was clear that it was aimed at physical

labor, and that giving it a fair construction, it

could not be said to exclude one whose work

involved mental rather than physical labor.

This court, speaking through Judge Brewer

said (P. 459):

‘It is a familiar rule, that a thing may

be within the letter of the statute and yet

not within the statute, because not within

its spirit, nor within the intention of its

makers. This has been often asserted, and

the reports are full of cases illustrating its

application. This is not the substitution of

the will of the judge for that of the legis-

lator, for frequently words of general

meaning are used in a statute, words broad

enough to include an act in question, and

yet a consideration of the whole legislation,

11

or of the cireumstances surrounding its en-

actment, or of the absurd results which

follow from giving such broad meaning to

the words, makes it unreasonable to believe

that the legislator intended to include the

particular act.

That was a much stronger case than this, for

the Act of February 26, 1885, nowhere in its

provisions mentioned a clergyman, while the

Act of February 5, 1917, expressly mentions

ministers and their wives and children.

In Chung Toy Ho, 42 Fed. 398,

Section 6 of the Act of July 5, 1884, ¢c. 220,

23 Stat. 115 (Chinese Exelusion Act) was con-

strued in connection with the Treaty with China

of November 17, 1880, 22 Stat. 826. That Act*

required ‘‘every Chinese person’’, other than a

laborer, coming to this country, to be identified

by a certificate from the Chinese Government,

and provided that such certificate should be the

sole evidence permissible on the part of the

person producing the same, to establish a right

of entry into the United States.

Article II of the Treaty with China, of No-

vember 17, 1880 **, dispensed with the necessity

of such certificate in the case of a Chinese

merchant, and provided that he could come and

go of his own free will and accord, and placed

him on a par with citizens and subjects of the

most favored nation. The husband and father

of the petitioners in that case was a Chinese

merchant dwelling in the United States, and

* Supplement, p. 30 where the relevant part appears.

** Supplement. p. 30 verbatim.

12

they came here to join him and reside with him.

They did not have the certificate required by

Section 6 of the Act of July 5, 1834, and were

ordered excluded on that ground. The question

involved was whether they could enter without

it, by virtue of the right of entry of the hus-

band and father, though neither the Act nor the

Treafy mentioned or exempted the wife or child

of such Chinese merchant. The Court held they

were admissible, saying (P. 399):

“The manifest purpose of this legislation

is to exclude Chinese laborers, from com-

ing or returning to the United States. The

other classes—teacher, student, and merch-

ant’—are not required to have certificates

before they can be admitted into the coun-

try, because their admission is intended to

be restrained or limited, but to prevent

laborers from being admitted under the

guise or in the character of such classes.

There is no limitation on the right of

these classes to come within and dwell in the

United States. The statute only requires

that such a person shall furnish the pre-

scribed evidence that he belongs to one of

these favored classes, when he may come

and go at pleasure.

The admission of the petitioners is not

within the mischief that the exclusion act

was intended to remedy. They are both

females, the child being about eight years

of age. It is common knowledge — that

Chinese women are not laborers. The sta-

tion in life of the petitioners, being the wife

mop atce Tae SEAN TR

Piet ohm ek eae! ——e —_

A a a i ak aa a Ce

13

and child of a merchant, also shows they

do not belong to the laboring class.

The petitioners are not within the pur-

view of the exclusion act of 1888, which is

confined to laborers. Do they come within

that of section 6 of the act of 1884, which re-

quires ‘every Chinese person’ other than a

laborer to procure from his own govern-

ment the certificate required by said section

before he can be admitted into the United

States?

Confessedly, the petitioners are ‘Chinese

persons’, and are therefore within the let-

ter of the statute. But in my judgment they

are not the ‘persons’ contemplated by con-

eress in the passage of the act.

Chinese women are not teachers, students,

or merchants; and therefore they cannot, as

such, obtain the certificate necessary to

show they belong to the favored class.

But, as the wives and children of ‘teachers,

students, and merchants’, they do in fact

belong to such class; and the proof of such

relation with a person of this class, entitled

to admission, is plenary evidence of such

fact.’’ (Italics ours).

The Court then said that it ought not to be

lightly or without cogent reason coneluded that

Congress in the passage of the Act of 1884 really

intended to limit or restrain its operation in

this respect, remarking (p. 399):

‘“‘The treaty (article 2) declares that a

Chinese merchant may bring his ‘body

and household servants’ with him into the

country ° ° °.

EEO PER SEG sa EE Ee OU alae oe ee eee ee ee ae OOD a

14

it is impossible to believe that parties to

this treaty, which permits the servants of a

merchant to enter the country with him,

ever contemplated the exclusion of his wife

aud children. And the reason why they are

uot expressly mentioned, as entitled to such

admission, is found im the fact that the

domicile of the wife aud children is that of

the husband and father, and that the con-

cession to the merchant of the right to en-

ter the United States, and dwell therein at

pleasure, fairly construed, does include his

wife and minor children * * * (italies ours).

There is nothing in the act of 1884 that

indicates an intention on the part of con-

gress to limit or restrain the privileges con-

ceded to Chinese merchants by this article

of the treaty. It only adds a rule or meas-

ure of evidence by which the fact of being

such merchants may be conclusively estab-

lished.

* * * * *

My conclusion is that under the treaty

and statute, taken together, a Chinese

merchant who is entitled to come into and

dwell in the United States is thereby en-

titled to bring with him, and have with him,

his wife and children. The company of the

one, and the eare and custody of the other,

are his by natural right; and he ought not

to be deprived of either, unless the intention

of congress to do so is clear and unmistake-

able.’’ (Italics ours).

SI LP RT AT COI ELE LEMOS ENE LIN

15

To like effect is Re Tung Yeong, 19 Fed. 184.

In United States vs. Mrs. Gue Lim, 176 U.S.

459, this Court also construed the Chinese Ex-

clusion Act of July 5, 1884, ¢. 220, 23 Stat. 115,(@)

in connection with the Treaty with China of

November 17, 1880, 22 Stat. 826,() and the

Convention with China of March 17, 1894, 28

Stat. 1211.() The aliens in that case were the

wife and child of a Chinese merchant, and they

were also ordered excluded because of their

failure to produce the required certificate. There

was nothing in the Act, Treaty or Convention

which mentioned or exempted such wife or child,

vet this court held that by fair construction

they could not be exeluded, and that their right

to come in was theirs by reason of their rela-

tionship to the father.

This court, speaking through Judge Peckham,

said (P. 461):

“The question here arising in regard to

the correctness of the decision of the Dis-

trict Court in the case of the married

woman depends for its solution upon the

construction to be given to the sixth section

of the act of Congress of 1884. * * *’’

(On Page 462):

‘“That section must be construed in con-

nection with the treaty concluded between

this country and China in November, 1880,

22 Stat. 826.

(a) Supplement, page 30.

(b) Ibid.

(c) Supplement, page 32, relevant part.

16

It is contended, on the part of counsel

for the Government that by the subsequent

treaty of March, 1894, 28 Stat. 1210, the two

Governments have agreed that the require-

ments of a certificate as provided for in the

sixth section of the act of Congress shall

apply to all permitted Chinese subjects who

must, Without exception, produce such cer-

tificates.’’

(On Page 463):

“We do not think the treaty of 1894 alters

the result flowing from the treaty of 1880

and the act of 1884. The question is, wheth-

er wnder the act of 1884, construed in con-

nection with the treaty of 1880, the wife of

a Chinese merchant, domiciled in this coun-

try, may enter the United States without

a certificate, because she is the wife of such

merchant. (Italics ours).

Although the third article of the treaty

of 1894 does speak of certificates for Chin-

ese subjects therein described, who already

enjoy the right to enter the country, the

question recurs whether the certificate of

the husband who himself enjoys the right

is not enough for the wife, the fact being

proved or admitted that she is such wife.

Possibly the result of the treaty of 1894

may be held to be, instead of simply pro-

hibiting the entrance of Chinese laborers,

to restrict the right of entry to those classes

who are specially named in the third article

of the treaty. But the question would still

remain whether the wives of the members

PELLET IE ILS HOLL ET NI MEAL SRA

17

of the classes privileged to enter, were not

entitled themselves to enter by reason of

the right of the husband and without the

certificate mentioned in the act of 1884.’’

(Italies ours).

(On Page 464):

“This court has already sustained the

power of Congress to provide for excluding

or expelling Chinese, even in contravention

of a treaty; also the power to entrust the

final determination of the facts upon which

the individual is to be expelled, to an ex-

ecutive officer. Fong Yoe Ting vs. U. 8.

149 U. S. 698; Wong Wing vs. U. S. 163

U.S. 228 * * *. The question is, What did

Congress mean by the act of 1884?

It is impossible to entertain the belief

that the Congress of the United States, im-

mediately after the conclusion of a treaty

between this country and the Chinese Em-

pire, would, while assuming to carry out

its provisions, pass an act which violated

or unreasonably obstructed the obligation of

any provision of the treaty.

* * * * *

There is nothing in the act of 1884, which,

in terms, enumerates and provides for the

admission of particular classes of persons.

It speaks in the sixth section of those who

may be entitled under the treaty or under

the act to come within the United States,

but the act does not assume to enlarge the

LE LEE EP PE IEP MAAS OAR REO PE LTTE AL SO

18

number or character of the classes specially

named in the treaty as entitled to admis-

sion, It is plain that in this case the

woman could not obtain the certificate as a

member of any of those specially enumerated

classes. She is neither an official, a teacher,

a student, a merchant nor a traveller for

curiosity or pleasure. She is simply the

wife of a merchant, who is himself a mem-

ber of one of the classes mentioned in the

treaty as entitled to admission. And yet

it is not possible to presume that the treaty,

in omitting to name the wives of those who

by the second article were entitled to ad-

mission, meant that they should be ex-

cluded. If not, then they would be entitled

to admission because they were such wives,

although not in terms mentioned in the

treaty. (Italics ours).

Does the sixth section mean that in such

ease the wife must obtain the certificate

therein provided for? We think not.

* * * * *

Various other provisions in the section

render it plain to our minds that it was

never intended to extend to the wives of

persons who were themselves entitled to

entry.’’ (Italics ours).

(On Page 467):

‘“‘While the literal construction of the

section would require a certificate, as there-

in stated, from every Chinese person, other

than a laborer, who should come into the

EG RALEL HS LOREEN REET I IIT, OMENS EE

19

country, yet such a construction leads to

what we think an absurd result, for if re-

quires a certificate for a wife of a merchant,

among others, in regard to whom it would

be impossible to give the particulars which

the statute requires shall be stated in such

certificate.

‘Nothing is better settled’, says the pres-

ent Chief Justice, in Lau Ow Bew vs. U. S.,

144 U. S. 47, 59, ‘than that statutes should

receive a sensible construction, such as will

effectuate the legislative intention, and, if

possible, so as to avoid an unjust or an ab-

surd conclusion’.

The purpose of the sixth section, requir-

ing the certificate, was not to prevent the

persons named in the second article of the

treaty from coming into the country, but

to prevent Chinese laborers from entering

under the guise of being one of the classes

permitted by the treaty. It is the coming

of Chinese laborers that the act is aimed

against.’’

(On Page 468):

“‘To hold that a certificate is required in

this case is to decide that the woman cannot

come into the country at all, for it is not

possible for her to comply with the act,

because she cannot in any event procure

the certificate even by returning to China.

She must come in as the wife of her domi-

ciled husband er sot ai all. The act was

never meant to accomplish the result of per-

PEELE EE EAE PLE LILO LEE LIE EL LIES EME ELIE LLL IOS

20

mancnutly excluding the wife under the cir-

cumstances of this case, and we think that,

properly aud reasonably construed, it does

not do so. (Italies ours).

% * * % %

They come in by reason of their relation-

ship to the father * * *. When the fact

is established, to the satisfaction of the

authorities that the person claiming to en-

ter, either as the wife or minor child, is

in fact the wife or minor child of one of

the members of the class mentioned in the

treaty as entitled to enter, then that person

is entitled to admission. * * *’’ (Italics

ours).

Applying the rule of construction in the cases

referred to, coupled with the exemption of minis-

ters and their wives and children in Section 3

of the Act of February 5, 1917, and the further

exception as to ministers in the Act of May 19,

1921, it seems clear that the challenge to the

correctness of the lower court’s construction is

entirely lacking in logie and merit.

II.

The doctrine of sensible construction

and implied exception.

There is yet another, and what we maintain

conclusive and decisive answer to the contention

of the petitioner, that from the mere fact that

the act does not in so many words inelude the

family of a minister, that congress intended to

exclude them while admitting him, and that is

this: That for the purpose of avoiding an un-

just, oppressive, or absuid consequence or con-

clusion, it will be presumed that the legislature

intended exceptions to its language, where with-

out them such a result would obtain.

This was expressly held in

Church of the Holy Trinity, supra,

where Mr. Justice Brewer, quoting from

United States vs. Kirby, 7 Wall. 482, 486, said

(P. 461):

‘¢ All laws should receive a sensible con-

struction. General terms should be so lim-

ited in their application as not to lead to

injustice, oppression or an absurd conse-

quence. It will always, therefore, be pre-

sumed that the legislature intended excep-

tions to its language which would avoid re-

sults of this character. The reason of the

law in such eases should prevail over its

letter.’ ’’ (Italies ours).

It has been said that—

‘‘These immigration statutes are to be

construed as a whole, and not by singling

out particular words or sections, and inter-

preting them according to their strict letter.

A thing may be within the letter of the

statute, and vet not within the statute, be-

PRATT:

TILE OSLER PLO

22

cause not within its spirit, nor within the

intention of its makers.’’ (Italies ours.)

From United States ex rel Andersen

vs. Burke, 99 Fed., 895, 898.

Is it within the spirit of the statute, or the

intention of its makers, that a minister should

Le permitted the right of entry, regardless of the

quota allotment being exhausted, and yet not

give a similar right of entry to the members of

his family? It would seem most unreasonable

to suppose that such was the legislative intent

—to admit a minister and exelude his family.

In United States vs. Kirby and in United

Staes ex rel Andersen vs. Burke, supra, and Lau

Ow Bew vs. United States, post, it was held

that a sensible construction should le given to

immigration statutes; and if a sensible con-

struction be given to the act of May 19, 1921,

it is entirely clear that it is not within the spirit

of the statute to admit a minister and exclude

the members of his family.

In Lau Ow Bew vs. United States, 144 U. S.,

47, 59; 12 Sup. Ct., 520; 36 L. ed, 44, a de-

portation case, Chief Justice Fuller said (page

59) :

“Nothing is better settled than that stat-

utes should receive a sensible construction,

such as will effectuate the legislative inten-

tion, and, if possible, so as to avoid an un-

just or an absurd conclusion,’’ (Italics

ours).

PRED MSE ION EOE AIL IGT LOIN, DIME RNA ERD Oy BAS

9

23

And U, S. v. Mrs. Gue Lim, supra,

In United States vs, Barnes, 222 U. S., 513,

519, Mr. Justice Van Devanrer, speaking of the

rule of implied exception said (page 519):

“The maxim invoked expresses a rule of

construction, not of substantive law, and

serves only as an aid in discerning the legis-

lative intent when that is not otherwise

manifest. In such instances it is of deciding

importance; in others, not. In the instance

now before us too much is claimed for it.

On page 520:

** & &

It is the settled rule of decision in

this court that where there is subsequent

legislation upon such a subject it carries

with it an implication that the general rules

are not superseded, but are to be applied

in its enforcement, save as the contrary

clearly appears.

“**ceePhe more natural, if not the neces-

sary inference in all ‘such cases is, that

the legislature intends the new laws to be

auxiliary to, and in aid of the purposes of

the old law * * * There certainly, under

such circumstances, ought to be a manifest

and total repugnancy in the provisions, to

lead to the conclusion that the latter laws

abrogated, and were designed to abrogate

the former.’ ”’

In City of Lexington vs, Commercial Bank

130 Mo. App., 687, 692, the Court said:

’

‘The maxim that the expression of one

thing is the exclusion of others not ex-

ae IEEE HAI EL ELE YA IIE MIE HIT I NP

24

pressed is not to be aecepted as a hard and

fast canon of statutory construction, but as

a guide to point to the legislative intent

which, when ascertained, should dominate

the construction to be placed on the enact-

ment (Me Farlaud v. Railway, 94 Mo., App.

1. ec. 342). It has been said, if there is some

special reason for mentioning one and none

for mentioning the other, the absence of any

mention of the latter will not operate as an

exclusion and that the maxim does not apply

to a statute in which mention is made by

way of example or made in affirmance of

existing law or to remove doubts, or when

the context shows a different intention. To

ascertain the intention of a statute, it should

be read in view of all the surrounding facts

and circumstances, under which it was en-

acted, and, it may be added ‘common sense

and good faith are the leading and princi

pal characteristics of all interpretation.’ ’

(Italies ours).

And Re Chung Toy Ho, supra.

Bearing in mind the rule of sensible construe-

tion and intended exception, and that a con-

struction should be given as not to lead to in-

justice, oppression or an absurd consequence,

the conclusion is irresistible that it was not in-

tended that the family of a minister should be

excluded, because of the exhaustion of the quota

allotment, where the minister himself was ex-

cepted therefrom.

There is not the slightest expression in the

restrictive Act of May 19, 1921, unless it is

SS RT a NI re TN Ns Bam eS —

25

read into it by sheer foree, which indicates that

it was the intention of Congress to admit a min-

ister and exclude the members of his family.

Neither the letter nor the spirit of the Act calls

for a construction imputing to Congress the

intention to create a condition so unreasonable.

Nothing in the scope of the statute seems to con-

template, or can be rationally held to contem-

plate the interpretation contended for, namely,

the exclusion of “‘parts of a family’’.*

Under the Act of February 5, 1917, these

aliens were admissible, and since the Act of

May 19, 1921, is in addition to and not in sub-

stitution for the immigration laws, Congress ob-

viously cannot be said te have intended that law

as a substitute, so as to include therein those

admissible under the basie (1917) Act.

In other words, Congress, in substance, said

this:

“In addition to those already excludable

under the 1917 Aet, we exclude those we

now specifically mention.’’

That, we submit, is about all that can be said

the 1921 Act was intended to accomplish. That

is to say, it added an additional class to that

already excludable wnder the basic Act, but did

not touch or affect those admissible under it.

Here we see a definite purpose to exclude the

immigration and bringing in of persons intend-

ing to migrate to the United States if they

belong to the excluded classes.

Ministers of religions denominations are ex-

pressiy excepted, and although the members of

their immediate family, as wife and children,

* Jenks & Lauck, 4d hee, The Immigration Problem (1912),

PP. 335-336

26

are not specifically mentioned, nevertheless, it

must be apparent that this exception was in-

{ended to apply as well to them, for, as stated,

to hold the converse would be, in effect, to rule

that while he might come, his family might not.

This eannot be the just interpretation of the

Act upon the subject of this restrictive im-

migration, and such interpretation is no. justi-

fied by the terms of both Acts, upon a general

survey of them in all their parts, or by the re-

ports of the various committees. The traditional

poliey of the United States being to admit all

aliens, except those’ specifically excluded, it is

respectfully submitted, that with the rule of

sensible construction and intended exception in

mind, it cannot be held that it was the intention

of Congress by this Act, not to admit the re-

spondents, as the members of the family of a

minister, where he was expressly excepted from

the operation of its provisions.

III.

The Act of May 19, 1921.

It has been said that the object and purpose

of a law is the ever insistent consideration in its

interpretation (United States vs. Antikamnia

Co. 231 U. S. 654, 657).

A consideration of the reasons leading to the

passage of this Act clearly discloses its object

and purpose, and demonstrates that the wife

and children of a minister were not intended to

be ineluded in the quota allotment provisions.

A reference to the report of the Senate Com-

mittee on Immigration to accompany II. R, 4075

27

(Report No, 17, April 28, 1921, 67th Congress,

First Session) made by Mr. Dillingham, the pur-

ported author of the law, clearly indicates that

it was not the intention by this legislation, to

make the Act of May 19, 1921, general in its

operation. At page 7, thereof, it is stated:

“It was the new immigration coming in

unprecedented numbers which created our

pre-war problem and, as already indicated,

it is the impending return of this move-

ment to its pre-war status which in the

opinion of the Committee constitutes the

present emergency. Unlike the older im-

migration, which distributed itself to every

part of the country, entered every branch

of activity, and was, as a rule, quickly and

thoroughly assimilated, the wew tmmigra-

tion has consisted largely of «single men,

it has gone directly to the cities and to the

manufacturing centres, and has remained

there. It has moved in racial groups and

to a large extent has maintained them, and

compared with the older immigration it,

as a rule, shows a slighter tendency to be-

come American citizens and the number who

have gone to the land have been negligible.

The Committee are of the opinion that in

the present emergency a restriction should

be applied fo the type last described and

are convinced that such restriction should

be accomplished through some measure that

will insure definite effectiveness.’’ (Italies

ours).

Thus, it is established, that the ‘‘type’’ of im-

migrant which the emergency measure was

28

aimed at and directed, was not the wife and

children of a minister. That ‘‘type’’, was, mani-

festly, not intended.

As further illustrating that it was not in-

tended to make general in its operation, the re-

strictive Act of May 19, 1921, the following

from Page 6 of the same Report, emphasizes the

contention:

“For reasons stated and for others which

will further appear in this report the Com-

mittee are of the opinion that wo emergency

exists at the present time which warrants

a general prohibition of European immi-

eration into the United States, although it

has been advocated by some.

A prohibition measure of this character

has never been resorted to by the United

States and should only be adopied under

the most extraordinary circumstances,”

(Italics ours).

Here we have in most concrete form, the

definite indication that it was not the intention

of Congress by this restrictive legislation to

make it operate as a general prohibition, the

Report expressly stating that no emergency

exists which warrants it, and further declaring

that it had never been resorted to before.

That legislation was aimed at a_ particular

‘““type’ of aliens regarded as undesirable, in

respect to which a minister was not included,

and it ean hardly be said that Congress intended

to include his family in the undesirable ‘‘type’’,

where he, himself, was exempted and regarded

as desirable.

It was never suggested in the Committee dis-

cussions or Congressional debates, that the

29

family of a minister was aimed at and should

be excluded, or that their right of entry under

the basie Act of February 5, 1917, should in

any wise be affected by the Act of May 19,

1921. If Congress intended that such should be

the case, it would have plainly so expressed it,

and failure to find any such expression must be

regarded as a negative intention on its part.

This view is confirmed by the above quoted

portion of the Senate Committee’s Report, that

the legislation was not intended as a general

prohibition, nor that conditions warranted it and

such has been the ruling under the weight of

authority (Church of the Holy Trinity v. U. S.,

supra; Chung Toy Ho, supra; U. S. v. Mrs,

Gue Lim, supra).

Conclusion.

For the reasons hereinbefore urged,

it is respectfully submitted that the

determination of the Circuit Court of

Appeals affirming the order of the Dis-

trict Court, releasing and discharging

the respondents and admitting them

into the United States is correct, and

that its determination, should, there-

fore, be affirmed.

January, 1924.

Respectfully submitted,

JosepH G, M. Browne,

Counsel for Respondents.

Barnett EK. Kopretman,

With him on the brief.

ieeenmmenemememnen ERPET OOS TRATES AER LEI NS Ts I

30

SUPPLEMENT.

Treaty with China, November 17, 1880.

(Treaty between the United States and China, concerning

immigration. | Concluded November 17, 1880; ratification ad-

vised by the Senate May 5, 1881; ratified by the President May

9, 1881; ratifications exchanged July 19, 1881; proclaimed

October 5, 1881; 22 Stat. 826).

ARTICLE II.

CHINESE SUBJECTS IN THE Unrrep Srarves.

Chinese subjects, whether proceeding to

the United States as teachers, students,

merchants or from curiosity, together with

their body and household servants, and

Chinese laborers who are now in the United

States, shall be allowed to go and come of

their own free will and accord, and shall be

accorded all the rights, privileges, immuni-

ties and exemptions which are accorded to

the citizens and subjects of the most favored

nation.

Chinese Exclusion Act, July 5, 1884.

(An act to amend an act entitled “An Act to execute certain

treaty stipulations relating to Chinese approved May sixth

eighten hundred and eighty two; Approved July 5. 1884; 23

Stat. 116).

CHINESE, OTHER THAN LABORERS, TO BE

IDENTIFIED BY CERTIFICATE FROM CHINESE

GovERN MENT.

Sec. 6. That in order to the faithful

execution of the provisions of this act, every

Chinese person, other than a laborer, who

SERRE eT PRR ee ER ae

31

may be entitled by said treaty or this act

to come within the United States, and who

shall be about to come to the United States,

shall obtain the permission of and be iden-

tified as so entitled by the Chinese Govern-

ment, or of such other foreign Government

of which at the time such Chinese person

shall be a subject, in each case to be evi-

denced by a certificate issued by such Gov-

ernment, which certificate shall be in the

English language, and shall show such per-

mission, with the name of the permitted per-

son in his or her proper signature, and which

certificate shall state the individual, family

and tribal name in full, title or official rank,

if any, the age, height, and all physical pe-

culiarities, former and present occupation

or profession, when and where and how long

pursued, and place of residence of the

person to whom the certificate is issued, and

that such person is entitled by this act to

come within the United States. If the per-

son so applying for a certificate shall be

a merchant, said certificate shall, in addition

to above requirements, state the nature,

character, and estimated value of the busi-

ness carried on by him prior to and at the

time of his application as aforesaid * * *,

Such certificate vised as aforesaid shall be

prima facie evidence of the facts set forth

therein, and shall be produced * * * and

shall be the sole evidence permissible on the

part of the person so producing the same

to establish a right of entry into the United

States * * *,

—_—— PREM OR ISLE PET EN ET UTE PET

32

Convention with China, March 17, 1894.

(Convention between the United States of America and the

Empire of China. Emigration between the two countries.

Signed at Washington, March 17, 1894; ratification advised by

the Senate August 13, 1894; ratified by the President August 22,

1894: ratified by the Emperor of China in due form; ratifica-

tions exchanged at Washington December 7, 1894; proclaimed

December 8, 1894; 28 Stat. 1211).

ARTICLE IIL.

(‘LASSES PERMITTED TO ENTER.

The provisions of this Convention shall

not affect the right at present enjoyed of

Chinese subjects, being officials, teachers,

students, merchants or travellers for curi-

osity or pleasure, but not laborers, of com-

ing to the United States and residing there-

in. To entitle such Chinese subjects as

are above described to admission into the

United States, they may produce a certi-

ficate from their Government or the Govern-

ment where they last resided vised by the

diplomatic or consular representative of the

United States in the country or port whence

they depart.

33

Contract Labor Law, February 26, 1885.

(An act to prohibit the importation and migration of

foreigners and aliens under contract or agreement to perform

labor in the United States, its Territories, and the District of

Columbia; approved, February 26, 1885; c. 164; 23 Stat. 332).

Be it enacted by the Senate and House

of Representatives of the United States of

America in Congress assembled, That from

and after the passage of this act it shall

be unlawful for any person, company, part-

nership, or corporation, in any manner

whatsoever, to prepay the transportation,

or in any way assist or encourage the im-

portation or migration of any alien or aliens,

any foreigner or foreigners, into the United

States, its Territories, or the District of

Columbia, under contract or agreement,

parol or special, express or implied, made

previous to the importation or migration

of such alien or aliens, foreigner or for-

eigners, to perform labor or service of any

kind in the United States, its Territories,

or the District of Columbia.

* * * * *

Provided, That skilled labor for that pur-

pose cannot be otherwise obtained: nor

shall the provisions of this act apply to pro-

fessional actors, artists, lecturers, or sing-

ers, nor to persons employed strictly as

personal or domestic servants * * *,

(990)