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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0041%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1924
- **Citation:** 265 U.S. 310

## Text

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

a

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 .
pres gia , non nats ee nage

ee

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-

i) ee aa SORE SAR HOE oh ror amt eer :
: 6 PASS EEL = 26F Taal RIL onde ok Sees kane See ec eevee TRC

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
y , . — . . 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 —
zi aA Bed. x Pn RAPER RESTLESS AA RI

_ pacqmmcmmamaraaaas
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
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

‘ 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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0041%3A3. Public record. Not legal advice.