Petition — Cheung Sum Shee v. Nagle

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Gn the Supreme Couwt

OF THE

UNITED STATES

OCTOBER TERM, 1924

CHEUNG SUM SHEE, CHEUNG

WAI MUN, FONG GOON HONG,

DER HING FONG, WONG BEN

JUNG, HONG CHOW JUNG,f -

MOK LING PARK, NG SHEE and

WONG SHEE, On Habeas Corpus,

Appellants and Petitioners, ) No. 769

VS.

JOHN D. NAGLE, as Commissioner

of Immigration for the Port of San

Francisco,

Appellee and Respondent.

CERTIFICATION FROM THE UNITED STATES

CIRCUIT COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF ON BEHALF OF PETITIONERS

Statement of Facts

This action came to the Circuit Court of Appeals

for the Ninth Circuit upon appeal from the judg-

ment of the United States District Court for the

Northern District of California, Southern Division

thereof, Second Division, in favor of John D. Nagle,

Commissioner of Immigration for the Port of San

Francisco, respondent in the District Court, and

against Cheung Sum Shee, Cheung Wai Mun, Fong

Goon Hong, Der Hing Fong, Wong Ben Jung, Hong

Chow Jung, Mok Ling Park, Ng Shee and Wong

Shee, the petitioners in the District Court and the

appellants before the Court of Appeals for the Ninth

Circuit.

The action was to relieve the petitioners of the

restraint imposed by the appellee. The petition for

habeas corpus alleges that the appellants arrived at

the Port of San Francisco on the steamship President

Lincoln on July 11, 1924, and sought the right of

permanent admission into the United States, they

being respectively the wives or minor children of

resident Chinese merchants lawfully domiciled within

the United States, as in each instance specifically set

forth in the petition. They were awaiting a setting

of their cases for trial by the Commissioner of Immi-

gration, and had the necessary witnesses all in readi-

ness to appear for examination to establish their right

of admission into the United States, under the terms

of the treaties between the United States and China,

and the Chinese Exclusion and Restriction Acts. The

Commissioner did not accord the contemplated hear-

ing, but caused each applicant to be examined in

his own or her own case before a Board of Special

Inquiry, which thereupon denied each of them admis-

sion into the United States under the provisions of

the Immigration Act of 1924 effective July 1, 1924.

An appeal was at once taken to the Secretary of

Labor, where suitable protests and briefs were filed,

after which the Secretary of Labor dismissed the

appeal in each instance and affirmed the excluding

decision. The excluding decisions were substantially

the same in each instance, and by way of illustration

that of Cheung Sum Shee and her infant son Cheung

Wai Mun is cited, the ground for the Secretary’s

ruling being as follows:

“Neither the mercantile status of the husband

and father, nor the applicant’s relation to him, has

been investigated for the reason that even if it

were conceded that both these elements exist the

applicants would be inadmissible as a matter of

law. This is made necessary because of the inhibi-

tion against their coming to the United States as

found in paragraph (c) of section 13 and that por-

tion of section 5 which reads as follows: ‘An alien

who is not particularly specified in this act as a

non-quota immigrant or a non-immigrant shall not

be admitted as a non-quota immigrant or a non-

immigrant by reason of relationship to any in-

dividual who is so specified or by reason of being

excepted from the operation of any other law

regulating or forbidding immigration.’ ”

The petition alleges that there has been a miscon-

struction and a mistaken and wrongful interpretation

of the Immigration Act of 1924, the effect of which

has been to violate the rights of appellants as specifi-

cally recognized by the act itself, and said incorrect

Statutory construction violates and disregards the

lawful rights of petitioners and their respective hus-

bands and fathers. The petition was supplementally

amended by filing the original immigration records

in the case of each of the detained, and as so amended

the appellee interposed a general demurrer, which

was sustained by the lower court on October 25, 1924,

which thereupon refused to issue the writ of habeas

corpus, as prayed for, and denied the petition, after

which the case was immediately appealed and dock-

eted in the Court of Appeals for the Ninth Circuit.

The same legal propositions upon behalf of other

such applicants for admission were presented before

the United States District Court for the Western

District of Washington at Seattle, which were decided

favorably to the petitioners upon September 23, 1924:

In re Goon Dip et al. on habeas corpus, 1 Fed. (2)

Sir.

Later in the case of Chin Hem Shu (December 11,

1924), Judge Lowell of Massachusetts decided: “I

don’t think this new law overrules the law that the

merchants and their families can enter, and I shall fol-

low Judge Neterer on that.” The case was that of a

merchant’s minor son.

The Certified Question

Therefore the Circuit Court of Appeals for the

Ninth Circuit certified the following question to the

Supreme Court of the United States:

“Are the alien Chinese wives and minor children of

Chinese merchants who were lawfully domiciled

within the United States prior to July 1, 1924, such

wives and minor children now applying for admission,

mandatorily excluded from the United States under

the provisions of the Immigration Act of 1924?”

As will be perceived even in the event of an answer

favorable to the petitioners the questions of mercantile

status and relationship remain to be passed upon by

the lower court.

General Preliminary Observations

The status of the Chinese in America may here be

properly adverted to as a means of calling the atten-

tion of this Honorable Court in a general way to cer-

tain facts.

When the civilized nations of the world awoke

China from her centuries of isolation with a request

that she enter into commercial intercourse with the

nations of what was to her, the outside world, she

complied, and in 1844 freely granted to the United

States such a treaty. One of the first rights granted

(Article III) to our citizens was to reside with their

families and trade there, referring to the first five open

ports of China, and in the treaty of 1858 (Article

XIV) the right to reside with their families and trade

there was extended to all subsequently opened ports

and to all other ports and places in China when and

as they may be opened to commerce and residence.

These stipulations were all one way because up to

then the Chinese people had not traveled abroad.

In the Burlingame Treaty of 1868 Article II safe-

guards the previously granted right to our citizens to

reside with their families and trade there, and by

Article VI the rights of American citizens visiting or

residing in China were enlarged as to travel or resi-

dence by the favored nation clause, and reciprocally,

Chinese subjects visiting or residing in the United

States shall enjoy the same privileges, immunities and

exemptions in respect to travel or residence, and then

followed the favored nation clause. Chinese came to

our shores in response to treaty invitations (Article V)

and engaged in trade and commerce, and in complet-

ing Our transcontinental railways, in developing our

mines and in various ways hastened and materially

advanced the development of our western country;

some brought their families with them, others sent for

them later. Financial depression sweeping over the

country finally came to the western slope and compe-

tition and rivalry commenced which resulted in the

treaty of 1880 by which China consented to the stop-

ping by statute of the immigration of Chinese labor.

Article I provided: “The limitation or suspension

shall be reasonable, and shall apply only to Chinese

who may go to the United States.as laborers, other

classes not being included in the limitations.” Article

II provided: “Chinese subjects, whether proceeding

to the United States as teachers, students, merchants,

or from curtosity, together with their body and house-

hold servants, shall be allowed to go and come of their

own free will and accord.” Then followed the fa-

vored nation clause, while Article III extended this

clause to the Chinese either permanently or tempo-

rartly residing in the territory of the United States.

We have shown that the United States, one of the

leading civilized and Christianized nations in the

world, asked the right of its citizens to reside with

their families in China and trade there, and this was

granted in specific terms by China, a non-Christian

nation, and reciprocally, without enumeration, the

same rights were given to Chinese citizens coming to,

or residing within, the United States. This was solely

modified to prevent the coming of Chinese labor.

Could it be possible, bearing in mind the unity of the

family, identity of person and domicile, between hus-

band and wife, parents and children, that the right of

a Chinese merchant to reside with his family in this

country was withheld by treaty through want of spe-

cific reiteration?

We will show hereafter that when this matter was

presented to the court and finally to the Supreme

Court, it was held that the treaty rights of the Chinese

were not restricted or encroached upon; that the right

of merchants to reside here with their families—i. e.,

their wives and minor children—was upheld, and that

treaty interpretation has been undisputed and upheld

until the beginning of the present controversy. The

right of entry and residence of Chinese within the

United States rests upon treaties and the statutes in

furtherance of said treaty stipulations. The General

Immigration Laws in specific terms were not to repeal,

alter or amend the Chinese Exclusion Laws. The

effectiveness of the Chinese Exclusion Laws is amply

demonstrated by the census reports, as the following

will show:

POPULATION OF CHINESE PERSONS

According to the United States Census Returns for

1890 to 1920, inclusive, as referring to San Fran-

cisco, California, and the United States.

Year San Francisco California United States

DR ke cia cus 25,833 72,472 10747 5

1900 ........ 13,954 45575 89,863

ee ecikans 10,582 36,24 71,531

ee 7,744 28,812 61,639

That the Chinese have not constituted a live politi-

cal question for many years is shown in the message

of President Roosevelt of December 5, 1905 (Abridge-

ment, 1905, Vol. I, pages 46-47) :

“The questions arising in connection with Chi-

nese immigration stand by themselves. * * * At

present their entrance is prohibited by laws amply

adequate to accomplish this purpose. These laws

have been, are being, and will be, thoroughly en-

forced. The violations of them are so few in num-

ber as to be infinitesimal and can be entirely dis-

regarded. There is no serious proposal to alter the

immigration law as regards the Chinese laborer,

skilled or unskilled, and there is no excuse for any

man feeling or affecting to feel the slightest alarm

on the subject. * * * Asa people we have talked

much of the open door in China, and we expect,

and quite rightly intend to insist upon, justice being

shown us by the Chinese. But we can not expect

to receive equity unless we do equity. We can not

ask the Chinese to do to us what we are unwilling

to do to them.”

The quota laws of 1921-1922 were devised to stop

inundation by post-war European immigration. The

Chinese, whose admission was regulated by treaty,

were exempt from its operation. The new quota law

of 1924 likewise exempts those coming for purposes

of trade under existing treaties of commerce and navi-

gation. All the treaties with China are conceded to

be of that character. The committee in presenting this

law stated that this phrase was broad enough to take

care of all the clauses of all of our immigration trea-

ties. In view of this fact it was believed by the Chi-

nese that they were completely exempted from the

present quota act, as indeed they had been from the

earlier act, it being borne in mind that the present leg-

islation in this regard was but in execution of prior

existing treaty stipulations.

The denial by the immigration authorities of the

right of these wives and minor children to enter the

United States comes as a shock to the sensibilities of

enlightened and Christian people no less than to the

Chinese residents of this country, and the parties to

this suit. The foundation of all Christian society and

civilization is respect for the unity of family, identity

of person and domicile, of husband and wife, parents

and children. The fact that one of the leading civil-

ized and Christian nations should be put in the light

of entering such a decree against harmless, useful and

law-abiding men, women and children shocks our sen-

sibilities, and a decree that violates the rights which

a pagan nation gave to our citizens to reside with

their families in China is most repellant to our con-

science, and violative in the highest and most extreme

sense of solemn treaty rights long acknowledged and

upheld without harmful result to our country; and

this, in spite of the fact that the statute in question pro-

fesses but to execute these existing treaty stipulations,

and it, therefore, seems that the executive decree in

these cases is based upon an incorrect construction of

this act, the effect of which is to infringe the treaty and

statutory rights specifically recognized by the act

itself. The contention which we make has been upheld

by District Judge Neterer of Seattle and District

Judge Lowell of Boston, and has been denied alone by

District Judge Kerrigan of San Francisco in these

cases, 2 F. (2d) 995.

The Issue

Stated in a few words the issue in this case is

whether or not, now that the Immigration Act of

1924 is in effect, the wives and minor children of

Chinese merchants domiciled in the United States

are to be allowed entry to join husbands and fathers.

If the answer be yes, the petitioners must be dis-

charged, subject to questions indicated of status and

relationship. If otherwise, then families must con-

tinue separate or the fathers must give up their busi-

ness in our country and return to a country from

which they have long been separated and take up

life in a new way. To many the answer to the riddle

is to all intents a matter of life and death.

We must, therefore, approach the study of this

proposition with broad and liberal minds, not forget-

ful of the fact that the Chinese may readapt the fa-

miliar Shakespearean quotation to apply to themselves,

thusly:

“Hath not a Chinaman hands, organs, dimen-

sions, senses, affections, passions? Fed with the

same food, hurt with the same weapons, subject to

the same diseases, healed by the same means,

warmed and cooled by the same winter and sum-

mer, as a Christian? If you prick us do we not

bleed?”

We are not considering inanimate objects, but crea-

tures of flesh and blood, partakers of a common

humanity with us. We do not believe without

clear proof that Congress forgot all this and with

deliberation enacted a law calculated to sever the very

heartstrings of men and women and little children, or

to uproot with violent hands the legitimate surround-

ings and ambitions of a lifetime of many good men.

Treaties and Statutory Provisions Affecting Exclusion of

Chinese Involved in This Case ;

The first treaty between the United States and

China was that of 1844 of Peace, Amity and Com-

merce (Malloy’s Treaties, Vol. 1, p. 196). Article III

of this treaty gives citizens of the United States the

right to frequent certain treaty ports and to reside

with their families and trade there. Article XXXIV

contemplates the possibility of modifications to be

treated of amicably at the expiration of twelve years

from the date of the convention. It will be noted,

therefore, that this treaty was one of commerce, and

the following one was like it in this respect.

The next was that of 1858, entered into for the same

purposes, and which we may pass over (Malloy’s

Treaties, Vol. 1, p. 211).

The treaty following was what is known as the

Burlingame Treaty of 1868 (Malloy’s Treaties, Vol.

I, p. 234). This treaty is to be treated as if it were

in effect a continuation of the Treaty of 1858, for in

the first paragraph it speaks of “circumstances” that

“have arisen showing the necessity of additional arti-

cles thereto.” We quote first from Article V the fol-

lowing:

“The United States of America and the Em-

peror of China cordially recognize the inherent and

inalienable right of man to change his home and

allegiance, and also the mutual advantage of the

free migration and emigration of their citizens

and subjects respectively from the one country to

the other for purposes of curiosity, of trade or as

permanent residents.” * * *

“Article VI. Citizens of the United States visit-

ing or residing in China shall enjoy the same

privileges, immunities or exemptions in respect to

travel or residence as may there be enjoyed by

the citizens or subjects of the most favored nation;

and, reciprocally, Chinese subjects visiting or

residing in the United States shall enjoy the same

privileges, immunities and exemptions in respect

to travel or residence as may there be enjoyed by

the citizens or subjects of the most favored nation.

But nothing herein contained shall be held to

confer naturalization upon citizens of the United

States in China, nor upon the subjects of China

in the United States.”

Then came the treaty of 1880 (Malloy’s Treaties,

Vol. 1, p. 237), the parts essential to this discussion

being as follows:

“Article I. Whenever in the opinion of the

Government of the United States the coming of

Chinese laborers to the United States, or their

residence therein, affects or threatens to affect the

interests of that country, or to endanger the good

order of the said country or of any locality within

the territory thereof, the Government of China

agrees that the Government of the United States

may regulate, limit, or suspend such coming or

residence, but may not absolutely prohibit it. The

limitation or suspension shall be reasonable and

shall apply only to Chinese who may go to the

United States as laborers, other classes not being

included in the limitations. Legislation taken in

regard to Chinese laborers will be of such a char-

acter only as is necessary to enforce the regulation,

limitation or suspension of immigration, and immi-

grants shall not be subject to personal maltreatment

or abuse.”

“Article II. Chinese subjects, whether proceed-

ing to the United States as teachers, students, mer-

chants 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,

immunities and exemptions which are accorded to

the citizens and subjects of the most favored

nation.”

In 1894, came the Convention Regulating Chinese

Immigration (Malloy’s Treaties, Vol. 1, p. 241).

From this we quote as pertinent:

“And whereas the two Governments desire to

co-operate in prohibiting such immigration, and to

strengthen in other ways the bonds of friendship

between the two countries: * *

Article I. “The High Contracting Parties

agree that for a period of ten years, beginning

with the date of the exchange of the ratifications

of this Convention, the coming, except under

the conditions hereinafter specified, of Chinese

laborers to the United States shall be absolutely

prohibited. * * *

Article III. “The provisions of this Convention

shall not affect the right at present enjoyed of

Chinese subjects, being officials, teachers, students,

merchants or travellers for curiosity or pleasure,

but not laborers, of coming to the United States

and residing therein. To entitle such Chinese sub-

jects as are above described to admission into the

United States, they may produce a certificate from

their Government or the Government where they

last resided vised by the diplomatic or consular

representative of the United States in the country

or port whence they depart.”

In 1903 the United States entered into a “Treaty

as to Commercial Relations” (Malloy’s Treaties, Vol.

1, p. 261). We quote:

“The United States of America and His Majesty

the Emperor of China, being animated by an ear-

nest desire to extend further the commercial rela-

tions between them * * * whereby the Chinese

Government agreed to negotiate the amendments

deemed necessary by the foreign Governments to

the treaties of commerce and navigation and other

subjects concerning commercial relations, with the

object of facilitating them,” * * *

Article XVII. “It is agreed between the High

Contracting Parties hereto that all the provisions of

the several treaties between the United States and

China which were in force on the first day of

January A. D. 1900, are continued in full force

and effect except in so far as they are modified

by the present Treaty or other treaties to which

the United States is a party.

The present Treaty shall remain in force for a

period of ten years beginning with the date of the

exchange of ratifications and until a revision is

effected as hereinafter provided.”

These treaties serve to fix the rights of merchants

and laborers coming to and residing in the United

States except in so far as affected by legislation within

the United States. We have referred to the treaties

between the United States and China thus extensively

for the purpose of showing how thoroughly and re-

peatedly the right of Chinese merchants to enter this

country had been recognized by the treaty making

branch of our Government. First the right of Ameri-

cans to reside in certain Chinese ports was granted,

followed by the Burlingame treaty putting Chinese

merchants upon a reciprocal footing, and this in no-

wise affected by the Treaty of 1880. (See opinion of

Justice Field in Low Yam Chow, 13 Fed. 605, and

Justice McKenna in re Lee Kan vs. United States in

62 Fed. 914, approved by the Supreme Court in Lau

Ow Bew, 144 U. S. 47.)

The pertinent legislation which may be regarded

as having any force we now include. By the Act of

May 6, 1882 (22 Stat. L., 58), as amended and added

to by the Act of July 5, 1884 (23 Stat. L., 115) it is

provided that:

“Whereas in the opinion of the Government of

the United States the coming of Chinese laborers

to this country endangers the good order of certain

localities within the territory thereof: Therefore,

“Be it enacted by the Senate and House of Rep-

resentatives of the United States of America in

Congress assembled, That from and after the

passage of this Act, and until the expiration of ten

years next after the passage of this Act, the coming

of Chinese laborers to the United States be, and

the same is hereby suspended, and during such

suspension it shall not be lawful for any Chinese

laborer to come from any foreign port or place, or

having so come to remain within the United

gli ileal

Sec. 6. “That in order to the faithful execu-

tion of the provisions of this act, every Chinese

person, other than a laborer, who 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 identified as so entitled by the Chinese

Government, or of such other foreign Government

of which at the time such Chinese person shall be

a subject, in each case to be evidenced by a cer-

tificate issued by such Government, which certifi-

cate shall be in the English language, and shall

show such permission, with the name of the per-

mitted person 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 peculiarities,

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.

“Tf the person 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 business carried on by

him prior to and at the time of his application as

aforesaid: Provided, That nothing in this act nor

in said treaty shall be construed as embracing

within the meaning of the word ‘merchant,’ huck-

sters, peddlers, or those engaged in taking, drying,

or otherwise preserving shell or other fish for home

consumption or exportation.

“Sec. 13. That this act shall not apply to diplo-

matic and other officers of the Chinese or other

Governments traveling upon the business of that

Government, whose credentials shall be taken as

equivalent to the certificate in this act mentioned,

and shall exempt them and their body and house-

hold servants from the provisions of this act as

to other Chinese persons. * * * *

“Sec. 14. That hereafter no State court or

courts of the United States shall admit Chinese to

citizenship; and all laws in conflict with this act

are hereby repealed.”

The Act of September 13, 1888 (25 Stat. L., 476),

relating particularly to Chinese laborers, contains in

Section 7 this provision:

“Sec. 8. That the Secretary of Labor shall be,

and he hereby is, authorized and empowered to

make and prescribe, and from time to time to

change and amend such rules and regulations, not

in conflict with this act, as he may deem necessary

and proper to conveniently secure to such Chinese

persons as are provided for in articles second and

third of the said treaty between the United States

and the Empire of China, the rights therein men-

tioned, and such as shall also protect the United

States against the coming and transit of persons not

entitled to the benefit of the provisions of said

articles.”

By the Act of May 5s, 1892 (27 Stat. L., 25), it was

provided that:

“All laws now in force prohibiting and regu-

lating the coming into this country of Chinese

persons and persons of Chinese descent are hereby

continued in force for a period of ten years from

the passage of this act.”

By the Act of November 3, 1893 (28 Stat. L., 7),

it was provided in Section 2 as follows:

“The term ‘merchant’, as employed herein and

in the acts of which this is amendatory, shall have

the following meaning and none other: A mer-

chant is a person engaged in buying and selling

merchandise, at a fixed place of business, which

business is conducted in his name, and who during

the time he claims to be engaged as a merchant,

does not engage in the performance of any manual

labor, except such as is necessary in the conduct

of his business as such merchant.”

By the Act of April 29, 1902 (32 Stat. L., part 1,

176), as amended and re-enacted by Section 5 of the

Deficiency Act of April 27, 1904 (33 Stat. L., 394-

428), it is provided as follows:

‘All laws in force on the twenty-ninth day of

April, one thousand nine hundred and two, regu-

lating, suspending, or prohibiting the coming of

Chinese persons or persons of Chinese descent into

the United States, and the residence of such persons

therein, including sections five, six, seven, eight,

nine, ten, eleven, thirteen, and fourteen of the act

entitled ‘An act to prohibit the coming of Chinese

laborers into the United States,’ approved Septem-

ber thirteenth, one thousand eight hundred and

eighty-eight, be, and the same are hereby, re-

enacted, extended, and continued, without modifi-

cation, limitation, or condition.” * * *

Some of the foregoing references are given because

it will be necessary to refer to them in argument and

not because of direct application to the questions

involved in this case.

The Immigration Acts

Under this heading the first Act to which it becomes

necessary for us to call attention is that regulating

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

the United States (February 5, 1917; 39 Stat. L., 874).

In Section 3 are enumerated the classes of aliens,

specially referring among others to Asiatics, which

shall be excluded from admission to the United States

and providing among other things that “no alien now

in any way excluded from, or prevented from enter-

ing, the United States shall be admitted to the United

States.”

tt is added:

“The provision next 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, students, authors,

artists, merchants, and travellers 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 admis-

sion to the United States.” * * *

In Section 38 it is provided:

“That this act shall not be construed to repeal,

alter, or amend existing laws relating to the imm-

gration or exclusion of Chinese persons or persons

of Chinese descent, except as provided in section

nineteen hereof.” (Section 19, referred to, does

not affect questions involved in this case.)

The subject matter contained in this Section 38 was

considered by this Court in the cases of U. S. vs. Woo

Jan (245 U.S., 552; 38 Sup. Ct., 207; 62 L. Ed., 466),

White vs. Chin Fong (253 U. S., 113; 40 Sup Ct,

449), and in Ng Fung Ho et al. vs. White (259 U. S.,

276, 279; 42 Sup. Ct., 492, 493).

There followed the “Quota-Act” affecting immi-

gration, approved May 19, 1921 (42 Stat. L., 7), as

amended May 11, 1922 (42 Stat. L., 540), containing

nothing, however, directly affecting the questions in-

volved in this case, except that it provides in Section

4 that its provisions are in addition to and not in sub-

stitution for the provisions of the immigration law.

It is important to observe, however, that this quota

law in Section 2, Subdivision 5, exempts from its

operation “aliens from countries immigration from

which is regulated in accordance with treaties or

agreements relating solely to immigration.” The Chi-

nese were exempted because their coming was regu-

lated by treaty; the agreements had reference to the

so-called Gentlemen’s Agreement with the Japanese.

We come now to the Immigration Act of 1924,

approved May 26, 1924, being Public Law No. 139

of the Sixty-eighth Congress, and for convenience at

this point we include all pertinent sections as follows:

“Definition of ‘Immigrant’

“Sec. 3. When used in this Act the term ‘immi-

grant’ means any alien departing from any place

outside the United States destined for the United

States, except (1) a government official, his family,

attendants, servants and employees, (2) an alien

visiting the United States temporarily as a tourist

or temporarily for business or pleasure, (3) an

alien in continuous transit through the United

States, (4) an alien lawfully admitted to the United

States who later goes in transit from one part of

the United States to another through foreign con-

tiguous territory, (5) a bona fide alien seaman

serving as such on a vessel arriving at a port of

the United States and seeking to enter tempo-

rarily the United States solely in the pursuit of

his calling as a seaman, and (6) an alien entitled

to enter solely to carry on trade under and in pur-

suance of the provisions of a present existing treaty

of commerce and navigation.”

“Non-Quota Immigrants

“Sec. 4. When used in this Act the term

‘non-quota immigrant’ means,

(a) An immigrant who is the unmarried child

under 18 years of age, or the wife, of a citizen of

the United States who resides therein at the time

of the filing of a petition under section 9;

(b) An immigrant previously lawfully admitted

to the United States, who is returning from a tem-

porary visit »broad;

ion of Canada, Newfoundland, the Republic of

Mexico, the Republic of Cuba, the Republic of

Haiti, the Dominican Republic, the Canal Zone,

or an independent country of Central or South

America, and his wife, and his unmarried children

under 18 years of age, if accompanying or fol-

lowing to join him.

(d) An immigrant who continuously for at least

two years immediately preceding the time of his

application for admission to the United States has

been, and who seeks to enter the United States

solely for the purpose of, carrying on the vocation

of minister of any religious denomination, or pro-

fessor of a college, academy, seminary, or uni-

versity; and his wife, and his unmarried children

under 18 years of age, if accompanying or fol-

lowing to join him; or

(e) An immigrant who is a bona fide student

at least 15 years of age and who seeks to enter the

United States solely for the purpose of study at an

accredited school, college, academy, seminary, or

university, particularly designated by him and

approved by the Secretary of Labor, which shall

have agreed to report to the Secretary of Labor

the termination of attendance of each immigrant

student, and if any such institution of learning

fails to make such reports promptly the approval

shall be withdrawn.”

“Quota Immigrants

“Sec. 5. When used in this Act the term ‘quota

immigrant’ means any immigrant who is not a non-

quota immigrant. An alien who is not particu-

larly specified in this Act as a non-quota immigrant

or a non-immigrant shall not be admitted as a

non-quota immigrant or a non-immigrant by

reason of relationship to any individual who is so

specified or by reason of being excepted from the

operation of any other law regulating or forbid-

ding immigration.”

“Preferences Within Quotas

“Sec. 6. (a) In the issuance of immigration

visas to quota immigrants preference shall be

given—

(1) To a quota immigrant who is the unmar-

ried child under 21 years of age, the father,

the mother, the husband, or the wife, of a citi-

zen of the United States who is 21 years of age

or overs” © © ©

“Non-Quota Immigration Visas

“Sec. 8. A consular officer may, subject to

the limitations provided in sections 2 and 9g, issue

an immigration visa to a non-quota immigrant as

such upon satisfactory proof, under regulations

prescribed under this Act, that the applicant is

entitled to be regarded as a non-quota immigrant.”

“Exclusion From United States

“Sec. 13. (a) No immigrant shall be admitted

to the United States unless he (1) has an unex-

pired immigration visa or was born subsequent to

the issuance of the immigration visa of the accom-

panying parent, (2) is of the nationality specified

in*the visa in the immigration visa, (3) is a non-

quota immigrant if specified in the visa in the

immigration visa as such, and (4) is otherwise

admissible under the immigration laws.

(b) In such classes of cases and under such

conditions as may be by regulations prescribed

immigrants who have been legally admitted to

the United States and who depart therefrom tem-

porarily may be admitted to the United States

without being required to obtain an immigration

visa.

admitted to the United States unless such alien

(1) is admissible as a non-quota immigrant under

the provisions of subdivision (b), (d), or (e) of

section 4, or (2) is the wife, or the unmarried

child under 18 years of age, of an immigrant ad-

missible under such subdivision (d), and is ac-

companying or following to join him, or (3) is not

an immigrant as defined in Section 3.

(d) The Secretary of Laber may admit to the

United States any otherwise admissible immigrant

not admissible under clause (2) or (3) of subdi-

vision (a) of this section, if satisfied that such

admissibility was not known to, and could not

have been ascertained by the exercise of reasonable

diligence by, such immigrant prior to the de-

parture of the vessel from the last port outside

the United States and outside foreign contiguous

territory, or, in the case of an immigrant coming

from foreign contiguous territory, prior to the

application of the immigrant for admission.

(e) No quota immigrant shall be admitted un-

der subdivision (d) if the entire number of immi-

gration visas which may be issued to quota immi-

grants of the same nationality for the fiscal year

has already been issued. If such entire number

of immigration visas has not been issued, then

the Secretary of State, upon the admission of a

quota immigrant under subdivision (d), shall

reduce by one the number of immigration visas

which may be issued to quota immigrants of the

same nationality during the fiscal year in which

such immigrant is admitted; but if the Secretary

of State finds that it will not be practicable to

make such reduction before the end of such fiscal

year, then such immigrant shall not be admitted.

(f) Nothing in this section shall authorize the

remission or refunding of a fine, liability to which

has accrued under Section 16.”

“Maintenance of Exempt Status.

“Sec. 15. The admission to the United States

of an alien excepted from the class of immi-

grants by clause (2), (3), (4), (5), or (6) of

section (3), or declared to be a non-quota immi-

grant by subdivision (e) of section 4, shall be for

such time as may be by regulations prescribed,

and under such conditions as may be by regula-

tions prescribed (including, when deemed neces-

sary for the classes mentioned in clauses (2), (3),

(4), or (6) of section 3, the giving of bond with

sufficient surety, in such sum and containing such

conditions as may be by regulations prescribed)

to insure that, at the expiration of such time or

upon failure to maintain the status under which

admitted, he will depart from the United States.”

“Act to Be In Addition to Immigration Laws.

“Sec. 25. The provisions of this Act are in

addition to and not in substitution for the pro-

visions of the immigration laws, and shall be en-

forced as a part of such laws, and all the penal or

other provisions of such laws, not inapplicable,

shall apply to and be enforced in connection with

the provisions of this Act. An alien, although

admissible under the provisions of this Act, shall

not be admitted to the United States if he is ex-

cluded by any provision of the immigration laws

other than this Act, and an alien although admis-

sible under the provisions of the immigration laws

other than this Act, shall not be admitted to the

United States if he is excluded by any provision

of this Act.”

“General Definitions.

“Sec. 28. As used in this Act, * * *

(b) The term ‘alien’ includes any individual

not a native-born or naturalized citizen of the

United States, but this definition shall not be held

to include Indians of the United States not taxed,

nor citizens of the islands under the jurisdic-

tion of the United States.

used in reference to any individual, includes an

individual who is debarred from becoming a citi-

zen of the United States under Section 2169 of

the Revised Statutes, or under Section 14 of the

Act entitled ‘An Act to execute certain treaty

stipulations relating to Chinese’, approved May

6, 1882, or under section 1996, 1997, or 1998 of

the Revised Statutes, as amended, or under section

2 of the Act entitled ‘An Act to authorize the

President to increase temporarily the Military Es-

tablishment of the United States,’ approved May

18, 1917, as amended, or under law amendatory

of, supplementary to, or in substitution for, any of

such sections; * “

(g) The term ‘immigration laws’ includes such

Act (Act of February 5, 1917), this Act, and all

laws, conventions, and treaties of the United States

relating to the immigration, exclusion, or expul-

sion of aliens.”

Congressional Understanding as to Aliens Ineligible to

Citizenship Under the Immigration Act of 1924.

As we have under consideration the question of

the proper interpretation of the present act so far as

Chinese are concerned, we recall the old Blackstonean

maxim that in the interpretation of statutes one

should bear in mind the old law, the mischief and the

remedy. With this in view we can with advantage

refer to the reports of the Committee on Immigra-

tion and Naturalization of the House of Representa-

tives, the first report being No. 176, Sixty-eighth Con-

gress, First Session. This covers the first House Bill

in which a number of changes were afterwards made

with the result that it was largely recast, but, never-

theless, is pertinent to our discussion upon the points

in issue.

After reciting the necessity for immediate and

urgent need of immigration legislation by reason of

the fact that the Act of 1921, known as “The Three

Percent Law,” was about to expire, and there was

fear, in the absence of further legislation, that a move-

ment to our shores of the largest immigration of

peoples in the history of the world, might be expected

to begin July 1, 1924, and that the exclusion clauses

of the Act of February, 1917, would be powerless to

stem the tide, a bill was prepared which, among

other things, preserved the basic immigration act of

1917, changed the quota base of the Act of 1921 from

the census of 1910 to the census of 1890, reducing the

percentage from 3 to 2, and met “the situation with

reference to the admission of persons ineligible to

citizenship.” The report under the heading of “Per-

sons Ineligible to Citizenship” contains the following:

“The provisions of the bill in reference to the

admission and non-admission of ‘persons ineligible

to citizenship’ are as follows:

(b) No alien ineligible to citizenship shall be

admitted to the United States unless such alien (1)

is admissible as a non-quota immigrant under the

provisions of subdivision (b), (d), or (g) of sec-

tion 4, or (2) is the wife, or the unmarried child

under 18 years of age, of an immigrant admis-

sible under such subdivision (d), and is accom-

panying or following to join him, or (3) is not

an immigrant as defined in section 3.”

The subdivisions referred to are as follows:

“(b) An immigrant previously lawfully ad-

mitted to the United States, who is returning from

a temporary visit abroad;

(d) An immigrant who continuously for at

least two years immediately preceding the time of

his application for admission to the United States

has been, and who seeks to enter the United States

solely for the purpose of, carrying on the vocation

of minister of any religious denomination, or pro-

fessor of a college, academy, seminary, or uni-

versity.

(g) An immigrant who is a bona fide student

over 18 years of age and who seeks to enter the

United States solely for the purpose of study at an

accredited college, academy, seminary, or uni-

versity, particularly designated by him and ap-

proved by the Secretary.”

The report on page 14 continues:

“The commercial treaty between the United

States and Japan of 1911 supersedes the treaty

of 1894, and contains the following provisions:

“The citizens or subjects of each of the high

contracting parties shall have liberty to enter,

travel, and reside in the territories of the other

to carry on trade, wholesale and retail, to own or

lease and occupy houses, manufactories, ware-

houses and shops, to employ agents of their choice,

to lease land for residential purposes and commer-

cial purposes, and generally to do anything inci-

dent to or necessary for trade upon the same terms

as native citizens or subjects, submitting themselves

to the laws and regulations there established.”

The report refers to the fact that nationals of

Oriental countries are not entitled to be naturalized

and, without any reference whatever to the Chinese

situation, further discusses the commercial treaty be-

tween the United States and Japan of 1911, and the

so-called “Gentlemen’s Agreement.”

It is thus noted that Chinese were not specifically

mentioned or discussed in the preparation of this

report or of the bill to which it relates, nor does there

seem, at this point, to have been any intention on the

part of the committee that any provision touching

Chinese exclusion should be enacted, the difficulty in

regard to Japan being the only matter under dis-

cussion.

Later, the first bill (H. R. No. 6540) was reintro-

duced with amendments largely because of suggestions

coming from the Secretary of State, the reintroduced

bill being known as H. R. No. 7995; the report ac-

companying it being No. 350.

The purposes of the bill were stated essentially as

on the former occasion, the immigration law of 1917

again treated as the basic immigration law, and the

reasons for immediate action were stated in practically

identical language. Pursuant to the suggestion of

Secretary Hughes, however, “for the protection of

treaties of the United States with other countries,”

the following additional exemption clause was added

to Section 3:

(6) An alien entitled to enter the United States

solely to carry on trade under and in pursuance

of the provisions of a present existing treaty of

commerce and navigation.”

Commenting upon this it was said that

“Your committee feels that this additional ex-

emption does not pass that control (over immi-

gration) from Congress, and feels also that it is

broad enough to take care of all the clauses of

all our commercial treaties, including that with

Japan, which has been specifically mentioned in

the exchange of letters between the State Depart-

ment and the Committee.”

The committee reported at some length the pro-

visions of the Treaty of Commerce and Navigation

~ between the United States and Japan concluded in

1911 and the so-called “Gentlemen’s Agreement,” and

again and in like language considers who may not be

naturalized and assumes that (page 6 of Report)

“The modifications now made in the bill will

remove the Secretary’s objections, which were ap-

parently founded on the fact that Bill H. R. 6540

omitted to make exception for those coming solely

for trade purposes.”

It states that

“As a matter of fact, the Department of State

advises that no immigration treaties have been

made by the United States since those made with

China in 1880 and 1894, the latter of which was

terminated in 1904.”

Thereafter the Report discusses at great length the

relations between Japan and the United States in-

cluding the rapid increase of Japanese in the United

States, notwithstanding the “Gentlemen’s Agreement,”

and states that (Report, p. 9)

“It would appear from these facts that the

United States has been grossly lax in permitting

the increase in her territory of an unassimilable

population ineligible for citizenship, and that she

has deferred too long the adoption of remedial

measures.”

At no point is the suggestion made that it is desira-

ble or intended to change the Chinese exclusion laws.

The nearest approach is on page 6 of the Report,

where it is said that

“All must agree that nothing can be gained by

permitting to be built up in the United States colo-

nies of those who cannot under the law become

naturalized citizens, and must therefore owe alle-

giance to another government.”

Of course, it could scarcely be contended that this

remark could have reference to Chinese merchants

and their families.

It seems clear from this review that notwithstanding

the general language of the bill, and notwithstanding

references in it to aliens ineligible to citizenship and

unassimilable, the purpose in the Committee’s mind

was to put an end to the coming of the Japanese,

and this purpose was so determined that in the be-

ginning no saving clause whatever was inserted, and

the saving clause finally placed in the bill was only

put there to enable Japanese in business, particularly

provided for in the Treaty of 1911, to come under

the barriers which had been erected against their

national associates.

Judicial Construction and Interpretation of Chinese

Immigration Laws

With this condition as to the treaties and laws gov-

erning the right to entry into the United States of

Chinese merchants, their wives and children, and

evidence of Congressional intent, extending only to

others than Chinese, the Department of Labor has

excluded from such entry in this case the wives and

children of Chinese merchants residing in the United

States and who have appeared at our ports of entry

since July 1, 1924.

It will be noted that by treaty and by law only Chi-

nese merchants (not expressly including their wives

and children) were entitled to admission in express

terms until recognition of the right of wives and chil-

dren in Section 3 of the Immigration Act of 1917, and

that entry was refused by the Department of Labor

in these cases when the subject matter first received

special treatment. Yet up to the present time their

right to admission has not been successfully chal-

lenged. Although not enumerated, the right of ad-

mission as having the status of the merchant himself

has been continuously recognized since the decision

of Judge Deady in re Chung Toy Ho, 42 Federal,

398. He refers to the passage of the Act of 1884,

professedly to execute the Treaty of 1880, permitting

a Chinese merchant to bring his body and household

servants into the country where they shall “be ac-

corded all the rights, privileges, immunities and

exemptions which are accorded to the citizens of the

most favored nation,” and continues:

“Chinese women are not teachers, students, or

merchants; and therefore they cannot, as such, ob-

tain the certificate necessary to show they belong

to the favored class. But, as the wives and chil-

dren 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 ad-

mission, is plenary evidence of such fact. * * *

“Tt 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 and children. And the rea-

son why they are not expressly mentioned, as entitled

to such admission, is found in the fact that the

domicile of the wife and children is that of the

husband and father, and that the concession to

the merchant of the right to enter the United

States, and dwell therein at pleasure, fairly con-

strued, does include his wife and minor children,

particularly when it is remembered that such con-

cession is accompanied with a declaration to the

effect that, in such entry and sojourn into the coun-

try, he shall be entitled to all the rights and privi-

leges of a subject of Great Britain or a citizen

of France.”

In the case of the United States vs. Gue Lim, 83

Federal, 136, Hanford, District Judge, held that

“Looking now to the reasons for and against

the rule contended for by the officers of the gov-

ernment, I agree with Judge Deady that the admis-

sion of Chinese merchants with their families is

not to be regarded as a mischief which the Chinese

restriction and exclusion acts were intended to

remedy.”

The latter case was appealed to the Supreme Court

of the United States (176 U. S., 459; 44 Law. Ed.,

544) and in the course of its opinion the Supreme

Court said:

“The question is, what did Congress mean by the

Act of 1884? Some light upon that question can be

derived from the treaty of 1880, which must be read

in connection with it. By Article II of the treaty,

Chinese subjects proceeding to the United States,

either as teachers, students, merchants, or from curi-

osity, together with their body and household ser-

vants, were to be allowed to go and come of their

own free will and accord, and were to be ‘accorded

all the rights, privileges, immunities, and exemp-

tions which are accorded to the citizens and sub-

jects of the most favored nation.’

“Tt was for this purpose of carrying these treaty

stipulations into effect that the Act of 1882 (22

Stat. L., 58, Chap. 126), and the amended act of

1884 (23 Stat. L., 115, Chap. 220) were passed.”

“Tt is impossible to entertain the belief that the

Congress of the United States, immediately after

the conclusion of a treaty between this country and

the Chinese Empire, would, while assuming to

carry out its provisions, pass an act which violated

or unreasonably obstructed the obligation of any

provision of the treaty; * * * The act was never

meant to establish the result of permanently ex-

cluding the wife under the circumstances of this

case, avd we think that, properly and reasonably

construed, it does not do so. If we hold that she

is entitled to come in as the wife, because the truc

construction of the treaty and act permits it, there

is no provision which makes the certificate the

only proof of the fact that she is such wife. In

the case of the minor children the same result must

follow as in that of the wife.”

A most illuminating comment upon the decision in

the Gue Lim case is made by Mr. Justice McReynolds,

speaking for the court in Yee Won vs. White, 256

U. S., 399, wherein he says that the Gue Lim case

turned on the true meaning of section 6 of the Act of

July 5, 1884, as to requirement of certificate as to mer-

cantile character, and his conclusion was “that the

section should not be construed to exclude their wives,

since this would obstruct the plain purpose of the

treaty of 1880, to permit merchants freely to come

and go.”

Equally an interpretation which would exclude the

wives of all tourists or persons (aliens) visiting the

United States for business or pleasure or entering for

trade under an existing treaty of commerce and navi-

gation, at any rate unless within a quota, is certainly,

we submit, to be avoided.

The Court of Appeals for the Ninth Circuit, in

Tsoi Sim vs. U. S. (116 Fed., 920), decided on May

5, 1902, following the Gue Lim decision, states in

part:

“These cases recognize the principle that the

domicile of the parent is the domicile of the child

and that the status of the wife is fixed by the status

of the husband. That the domicile of the husband

is the domicile of the wife is well settled; it was

so expressly held in Anderson vs. Watt, 138 VU. S.,

PP. 094» 706; 11 Supreme Ct., 449; 34 Law. Ed.,

1078.

Should Broad or Narrow Construction Be Given to

Recent Legislation?

Approaching the consideration of the true construc-

tion to be given to the law as laid down by Congress,

we have a right to inquire broadly what has been the

interpretation of the laws governing Chinese immi-

gration when they have been called into question in

the courts. We are justified in doing this because

Congress in passing its legislation had a right to

expect, in the absence of express direction on its part

to the contrary, that the court would approach the

study of the new law from the general standpoint

which had prevailed before the recent enactments.

We can, as it happens, confidently assert that the legal

approach has been in favor of the broad rather than

the narrow treatment of the whole subject.

Let us enumerate some of the classes of cases in

which the attitude of the courts has been entirely

manifest:

1. In the case of Tsoi Sim vs. U. S., 116 Federal,

920, the Circuit Court of Appeals refused to expel

from this country a Chinese woman who had failed

to register during the registration period under the

Chinese Exclusion Act of 1923, and who, after the

expiration of the legal period, had married an Ameri-

can citizen. The Court held that it would be un-

reasonable, unjust and oppressive to give the statute

literal application. There was no clause of the Ex-

clusion Act specifically preventing the deportation

of this Chinese woman who had failed to register as

she did not belong to what is known as the “exempt

classes.”

2. In the case of Lau Ow Bew vs. U. S., 14

U. S., 47, the Supreme Court permitted re-entry into

this country of a Chinese merchant who had been

residing and carrying on business here and who had

gone abroad for a temporary visit. This, although

the Act of 1884 (23 Stat. L., 115) had specifically

provided that “every Chinese person, other than a

laborer * * * who shall be about to come to

the United States,” must obtain a specially described

certificate from the Chinese government and that the

certificate in question should 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.” The Court in declining under such circum-

stances to consider the certificate a requisite in the

case of the merchant established in this country, said:

“Nothing is better settled 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 absurd construction.”

It held, therefore, that such Chinaman should be

readmitted upon the basis of evidence showing that

he had previously lived here and without producing

the certificate specified by said section as required

of “every Chinese person other than a laborer.”

3. Section 2 of the Chinese Exclusion Act of No-

vember 3, 1893 (28 Stat. L., 7) provided in terms that

a merchant for the purposes of the exclusion laws

must be “a person engaged in the buying and selling

of merchandise at a fixed place of business, which

business is conducted in his name,” but the lower

court and finally the Supreme Court of the United

States held that it was not necessary for the mer-

chant to conduct the business in his own name, but

merely that his name shall appear in the partnership

certificate and that he must have a real interest in

the business; that it would be unreasonable in the light

of history and the purposes of the legislation, notwith-

standing the apparently plain language of the statute,

to impute to Congress the intention to change the

usual Chinese custom of doing business under a firm

designation, especially as the purposes of the law

could not be furthered by so doing (Lee Kan vs. U. S.,

62 Fed., 914; Tom Hong vs. U. S., 193 U. S., 517).

4. We have already alluded to the cases of Chung

Toy Ho, 42 Fed., 398, and Gue Lim vs. U. S., 17

U. S., 459, showing that although not at all included

as specified under the treaty or law, the wives and

children of merchants were entitled to admission to

the United States.

5. A rule of liberal interpretation to carry out

the intent rather than the naked letter of Congres-

sional enactment has repeatedly been shown as to

the general immigration acts. Without elaboration

we refer to

Church of the Holy Trinity vs. United States, 143

U. S., 457, wherein the court held that it was unreason-

able to suppose, considering the object of the Contract

Labor Law, that a minister was to be held excluded.

United States vs. Gay, 95 Fed., 226, the Circuit

Court of Appeals holding a window dresser imported

under contract was not a contract laborer.

Scharrenberg vs. Dollar Steamship Co., 229 Fed.,

970, affirmed by the Supreme Court, 245 U. S., 122,

holding a seaman engaged in foreign trade was not

a contract laborer.

Tatsukichi Kuwabara vs. United States, 260 Fed.,

104, holding that a Japanese teacher was not a con-

tract laborer.

United States vs. Union Bank of Canada, and

United States vs. Royal Dutch West India Mail Co.,

262 Fed., 91, adding into the meaning of the law a

bank bookkeeper and a steamship office clerk.

Ex parte Aird, 276 Fed., 954, holding draftsman as

a Marine engineer was admissible, and not a contract

laborer.

Ex parte Gouthro, 296 Fed., 506, holding a tele-

graph operator not within the Congressional meaning

as a contract laborer.

After this enumeration of specific cases, let us cite

the broad rule laid down by this court in United

States vs. Kirby, 7 Wall, 482, 486:

“All laws should receive a sensible construction.

General terms should be so limited in their appli-

cation as not to lead to injustice, oppression, or

an absurd consequence. It will always, therefore,

be presumed that the legislature intended excep-

tions to its —— which would avoid results

of this character. ¢ reason of the law in such

cases should prevail over its letter.”

Interpretation of Section 25.

It is, of course, a well known principle of statutory

construction that in the presence of contradictory or

dubious expressions of the legislative will, an effort

shall be made to harmonize and give effect to all

provisions of the law. With this in mind let us look

at Section 25 of the Immigration Act of 1924:

“The provisions of this Act are in addition to

and not in substitution for the provisions of the

immigration laws, and shall be enforced as a part

of such laws, and all the penal or other provisions

of such laws, not inapplicable, shall apply to and

be enforced in connection with the provisions of

this Act. An alien, although admissible under the

provisions of this Act, shall not be admitted to the

United States if he is excluded by any provision of

the immigration laws other than this Act, and an

alien, although admissible under the provisions of

the immigration laws other than this Act, shall not

be admitted to the United States if he is excluded

by any provision of this Act.”

If we say that this Act is in addition to, and not in

substitution for, existing immigration provisions and

add, as the Act does, that “other provisions of such

laws, not inapplicable, shall apply to and be enforced

in connection with the provisions of this Act,” and

give these expressions their proper and natural em-

phasis, we may arrive at a solution of the difficulty

arising later in the section, because of the direction of

the second clause of its second sentence—‘“an alien

although admissible under the provisions of the immi-

gration laws other than this Act, shall not be admitted

to the United States if he is excluded by any provision

of this Act.”

No intent is shown in this Act itself, or in the

reports accompanying it, to abolish the Chinese immi-

gration laws, and as we see by this section, the Act is

expressly declared not to be in substitution for such

laws. Furthermore, the Immigration Act of 1917,

with its clause in relation thereto (Section 38) ex-

pressly recognized the Chinese exclusion laws and

continued their existence.

All of the Act, we say, must be given, if possible,

meaning and effect, and if it be considered that the

“addition” it gives to the immigration laws as to aliens

incapable of naturalization in Section 13 refers to

Asiatics other than Chinese—the laws as to the latter

of whom are subjected to no substitution—then there

is a new class to whom the workings of the Act may

at this point be considered as dedicated, that is to

say, all aliens incapable of naturalization except those

who are expressly provided for by the laws govern-

ing the immigration of Chinese or coming from the

limits of the Asiatic barred zone. This interpretation

would accord with the facts of the situation, particu-

larly the new and pressing form of the Asiatic problem

and the intent of the committee to meet it. This general

view, furthermore, would permit the English traveler

for business or pleasure to enter with his family

irrespective of any question as to quota, for he would

receive the benefit of the Gue Lim decision, of which

the Department would logically be compelled to

deprive him if the wives of Chinese merchants were

rejected.

The foregoing argument would give to the second

sentence of Section 25 all the force to which it is

entitled.

Section 13 would be allowed its full force, but not

interpreted as a substitute for, or a repeal of, the

Chinese immigration laws. Section 14 as to deporta-

tion and exclusion and as to maintenance of exempt

status would be effective and. could be carried out.

Furthermore, the Asiatic barred zone provided for

by the Immigration Act of 1917 would remain in

force, and between the Chinese Exclusion Acts, the

barred zone provision and the provisions of the Act of

1924 as to remaining Asiatics, all persons ineligible to

naturalization and barred out, save for treaty provi-

sions or other special exceptions, would be provided

against.

The Effect of Clause (6) in Section 3 Relative to

Admission of Aliens to Carry on Trade.

Section 3 provides:

“When used in this Act the term ‘immigrant’

means any alien departing from any place outside

of the United States destined for the United States,

except * * * (2) an alien visiting the United

States temporarily for business or pleasure * * *

and (6) an alien entitled to enter the United States

solely to carry on trade under and in pursuance

to the provisions of a present existing treaty of

Commerce and Navigation.”

It seems to be the view of the government, as shown

by what has happened in this case, that the Chinese

Exclusion Acts are in effect superseded by the Immi-

gration Act of 1924 and that the only aliens entitled

to enter the United States, as far as this discussion is

concerned, are those who come solely to carry on

trade under the treaty and that as to these latter, their

wives and minor children may not be admitted be-

cause this particular clause is not referred to later ;

only clause (d) in section 4 being mentioned; such

clause (d) referring to ministers, professors and their

wives and unmarried children.

It will be borne in mind that clause (6) in Section

3 Was not originally in the Act, but was put in at the

suggestion of Secretary Hughes and that the insertion

was not completed in Section 13 as it should have

been to carry out in the most meticulous detail the

proper intent of the framers of the Act.

While we discuss this condition it is not, from our

point of view, at all essential to our argument. Never-

theless, a situation arises hereunder which proves to

our minds that the government interpretation is un-

tenable.

We need not repeat the argument that under the

Chinese Exclusion Acts without any especial mention

of them, the wives and minor children of merchants

have been found admissible, and precisely as that

was done under the sanction of the Supreme Court,

we have a right to argue that an alien entering this

country to carry on trade is entitled under all circum-

stances to bring with him his wife and minor children

—in other words, that Section 3 should, #=t=weee

appitcabte, be interpreted in favor of the wife and

children precisely as the Chinese immigration laws

have been interpreted for more than twenty years.

Applying this interpretation and assuming argumenta-

tively, as we have a right to argue, if the clause is

interpreted precisely as the old laws were interpreted,

a wife and children have the right to admission.

But to accept the interpretation the Department of

Labor gives to this section leads to a social and legal

absurdity, for it will be noted that by its terms an

alien visiting the United States temporarily as a tourist

or temporarily for business or pleasure, is a non-

immigrant and entitled to come in irrespective of any

question of quota. By the departmental interpreta-

tion, a wife or child of such a traveler would be com-

pelled to be regarded as a quota immigrant, or she

or it would be treated under Section 5 as an immi-

grant who is not a non-quota immigrant. Let us

assume, therefore, that the quota of England has been

exhausted when an Englishman visiting the United

States with his family arrived in New York. If an

alien entitled to enter the United States to carry on

trade under clause (6) may not bring with him his

wife and minor children, then under the circumstances

indicated, a tourist, the quota of his country being

exhausted, may not bring with him his wife and

children. No possible distinction can be made in the

interpretation of the two clauses. The exclusion,

therefore, of the wife and children demanded in this

case would mean that the wife and children of the tour-

ist or business man coming from England, the quota

being exhausted, must be stopped and turned back at the

port of entry. The Quota Act of 1921, as amended

in 1922, would not admit the Englishman’s family,

for as to travelers on business or pleasure no mention

is made of wives or children. Again the Immigration

Act of 1924 is silent on the subject. In practical appli-

cation no doubt has been expressed on this point as to

the Englishman’s family, nor should any doubt be now

expressed under like circumstances as to either Eng-

lish or Chinese merchants or their families. Let us

suppose that the wealthiest man in China desiring to

enter the United States with his family for self-

instruction should present himself at the Port of San

Francisco as a visitor for pleasure or as a tourist, he

might be admitted by the Department as a visitor

under clause (2) of Section 3, but there being no such

quota in his case as might sometime help the English-

man, the family would be refused admission. Could

such an interpretation contribute to the amenities

which should prevail between nations? But is it

not inescapable if the department be right as to

clause (6)?

Not alone would this interpretation be inconsistent

with the interpretation heretofore given with regard

to merchants’ wives and children, but it would go

much further and render invalid the coming into this

country in times past of even the wives and children

of the Chinese ministers to the United States. In this

connection we call the court’s attention to the fact

that the Act of 1882, as amended and added to by the

Act of July 5, 1884, touching the immigration of

Chinese said, in Section 13, that it should not apply

to diplomatic or other officers of the Chinese, or other

governments, traveling upon the business of their

government “whose credentials should be taken as

equivalent to the certificate in this Act mentioned,

and should exempt them and their body and household

servants from the provisions of this Act as to other

Chinese persons.”

Section 7 of the Act of September 13, 1888, gives

a general right of admission only to “Chinese diplo-

matic or consular officers and their attendants,” nat

to wives and children, and this law is now in existence.

Even the Treaty of 1894, referring to

“The right at present enjoyed by Chinese sub-

jects, being officers, teachers, students, merchants,

or travelers for curiosity or pleasure, but not

laborers, of coming to the United States and resid-

ing therein,”

never in express terms extended such right to their

wives or children; nevertheless they came in without

question.

To give, therefore, the interpretation to this Act

demanded by the Department of Labor, we must

confess that the Supreme Court was wrong in its Gue

Lim decision so frequently cited with approval, that

the Department of Labor was wrong in admitting

the wives of Chinese officials and travelers, and that

under the circumstances stated it would be wrong to

admit the wives and children of Englishmen or

Frenchmen coming to this country or of a wealthy

Chinese traveler seeking self-instruction, and we in-

sist upon this, notwithstanding the language of Sec-

tion 5, as follows:

“When used in this Act the term ‘quota im-

migrant’ means any immigrant who is not a non-

quota immigrant. An alien who is not particu-

larly specified in this Act as a non-quota immi-

grant or a non-immigrant shall not be admitted

as a non-quota immigrant or a non-immigrant by

reason of relationship to any individual who is so

— ae «=

specified or by reason of being excepted from the

operation of any other law regulating or forbid.

ding immigration.”

It is manifest that if the Chinese merchant’s wife is

not to be admitted because of the provision against

admission through relationship in Section 5, so also

the wife of the English traveler must stay out, unless

she be admitted under the quota. She has no express

non-quota provision to help her.

What Was the Effect of the Immigration Act of 1924 on the

Chinese Immigration Laws?

It will be remembered that the Act of 1917 pro-

vided in Section 38:

“That this Act shall not be construed to repeal,

alter, or amend, existing laws relating to the immi-

gration or exclusion of Chinese persons or persons

of Chinese descent, except as provided in Section

nineteen hereof.” (Section 19 refers to matters not

involved in this case.)

Also that the Act of 1921-1922 provides in Section 2

as follows:

“* * * This provision shall not apply to the

following, and they shall not be counted in reck-

oning any of the percentage limits provided in this

Act: * * * (5) aliens from countries immigra-

tion from which is regulated in accordance with

treaties or agreements relating solely to immigra-

tion;” * ¢ @

There being nothing of material character in the

Acts of 1917, 1921 and 1922 directly planned to affect

the Chinese, it is evident, therefore, that at the time

of the enactment of the Immigration Act of 1924, the

Chinese Immigration Laws were in full force and

effect, and the question arises as to whether they can

be treated as abrogated by anything contained in the

latter Act. When Congress was afforded the oppor-

tunity to set them aside altogether, particularly when

it came to define the term, “Immigration Laws,” in

paragraph (g) of Section 38, it described as including

“such Act (the Immigration Act of 1917), this Act and

all laws, conventions, and treaties of the United States

relating to the immigration, exclusion, and expulsion

of aliens.” We should not now forget that the Act

of 1917 expressly continued the Chinese Exclusion

Act.

It is true, as we have pointed out, that in Section

25 of the Act of 1924 it is said that:

“An alien, although admissible under the pro-

visions of this Act, shall not be admitted to the

United States if he is excluded by any provision

of the immigration laws other than this Act, and

an alien, although admissible under the provisions

of the immigration laws other than this Act, shall

not be admitted to the United States if he is ex-

cluded by any provision of this Act.”

It is also true that, under Paragraph (c) of Section

13 no alien ineligible to citizenship shall be admitted

to the United States unless such alien (1) is admis-

sible as a non-quota immigrant under the provisions of

subdivisions (b), (d), or (¢) of Section 4, or (2) is

an unmarried child under eighteen years of an immi-

grant admissible under such subdivision (d) and is

accompanying or following to join him, or (3) is

not an immigrant as defined in Section 3. It will be

recalled that these clauses are left as reported in the

original bill before the provision relative to traders

was inserted as clause (6) in section 3, and by

apparent inadvertence no express addition was made

to Section 4. We are, therefore, by the government's

contention, left in the position of admitting alien

wives (ineligible to citizenship) of ministers (perhaps

of the Buddhist religion) and professors with their

wives and not wives of merchants. Assuredly, Con-

gress had no such intent.

To give these sections the effect sought for by the

government would be to repeal by implication the

whole body of Chinese immigration laws recognized

as in existence by Section 38 of the Act of 1917 and

also recognized by paragraph (g) of Section 38, above

quoted. Merchants’ wives and minor children would

not be provided for as under prior legislation. Pro-

visions as to return of laborers would be defeated or

limited by the provisions of the new Act.

We have to submit, therefore, that repeals by im-

plication not being favored in the law, no intendment

to support them should be indulged in in the absence

of clear statutory direction.

Touching the question of repeals by implication

which are never favored, we refer without particular

elaboration to a few cases:

“The implication of a repeal of one ordinance

by another * * * is never favored.”

Mitchell vs. Dakota Central Tel. Co., 246

U. S. 396.

“The amendments of Espionage Act of June 1s,

1917 (40 Stat. L., 217, Chap. 30; Compiled Stat-

utes, Sec. 10212A), did mot invalidate a prosecu-

tion for acts committed before the amendment.”

Frohwerk vs. U. S., 249 U. S., 204; 63 Law

Ed., 561.

“An important public statute of long standing

will not be held to be repealed except by express

words or by strong and mecessary implication.”

Wilson vs. Spencer, \ Rand., 76; 10 Am. De-

cisions, 491.

Treaty Rights and Statutory Recognition Thereof

Without attempting to reiterate much that has been

said before we desire, in concilusion, briefly to call at-

tention to the fact that steps tto begin treaty relations

with China find expression in ithe Act of March, 1843,

€. go (§ Stat. 624), wherein Provision was made to

enable the President to establish future commercial

relations between the two countries “on terms of na-

tional equal reciprocity.” The original treaty which

followed was that of 1844, and the supplemental or

additional stipulations or articles embraced in the

treaties of 1858, 1868 and 1880 were but supplemental

and additional articles thereto, excepting for the sole

modification as to Chinese coming to this country as

laborers contained in the last mentioned treaty. The

treaty which followed, that of 1894, has since been

denounced by the Chinese Government. The last

treaty, that of 1903, was simply a reaffirmation of the

then existing treaties. The method and manner in

which these treaties are to be considered is simply

that the different treaty stipulations make one com-

posite and completed treaty. President Hayes, upon

this subject, and with respect to the first three of these

groups of treaty stipulations, states as follows (6,

Messages of Presidents, 4466) :

‘“* * * Upon the settled rules of interpreta-

tion applicable to such supplemental negotiations

the text of the principal treaty and of these ‘addi-

tional articles thereto’ constitute one treaty from

the conclusion of the new negotiations, in all parts

of equal and concurrent force and obligation be-

tween the two governments, and to all intents and

purposes as if embraced in one instrument.”

This view has been, in effect, upheld by Mr. Justice

Field when sitting on the circuit in the celebrated

case of “The Chinese Merchant In re Low Yam

Chow” (13 Fed., 605, 608) :

ie * #7

“The Act of May 6, 1882, was framed in sup-

posed conformity with the provisions of this sup-

plementary treaty. In the inhibitions which it

imposes upon the immigration of Chinese there is

no purpose expressed in terms to go beyond the

limitations prescribed by the treaty. And we will

not assume, in the absence of plain language to

the contrary, that Congress intended to disregard

the obligations of the original treaty of 1868,

which remains in full force except as modified by

the supplementary treaty of 1880. This latter

treaty only authorizes suspensive or restrictive

legislation with respect to the importation of Chi-

nese laborers. It provides, in express terms, as

seen above, that the limitation or suspension shall

apply only to them, ‘other classes not being in-

cluded in the limitations.’ ”

This view was concurred in and approved by the

Court of Appeals for the Ninth Circuit, the opinion

being written by Circuit Judge McKenna, who after-

wards succeeded to the Supreme Bench, in the case of

Lee Kan vs. United States (62 Fed., 914). This

holding was also quoted with approval by this Court

in the case of Lau Ow Bew (144 U.S., 59).

These decisions are all to the effect that the provi-

sions of the Burlingame Treaty, except as to the

coming of Chinese laborers, are still in full force and

effect. This Court in the case of United States vs.

Gue Lim (176 U. S., 459) upheld the right of a

merchant’s wife and minor children to enter the

United States as a treaty right, and that they were not

to be denied admission under the provisions of a sub-

sequent statutory enactment, whose sole purpose was

avowedly to execute these treaty stipulations. It was

not deemed necessary in that case, in support of the

plea of Chinese wives and minor children, to go back

of the stipulations in the treaty of 1880, and it may

not be necessary in the present controversy, but to

meet the contingency if it should be necessary, we

have herein specified the earlier treaty stipulations

wherein the right “fo reside with their families and

trade there” is reciprocally given to merchants travel-

ing or visiting in this country, and we submit that

this right lacks none of its vitality through having

been given reciprocally instead of by reiteration.

These different treaty articles formed one composite

and completed treaty, and as said by President Hayes

are “in all parts of equal and concurrent force and

obligation between the two governments, and to all

intents and purposes as if embraced in one instru-

ment.”

Upon the subject of the interpretation of treaties

the rule as later reaffirmed and announced by this

Court in Asakura vs. City of Seattle (265 U.S., 332;

44 Sup. Ct. 515), said, through Mr. Justice Butler,

as follows

«“* ® * Treaties are to be construed in a

broad and liberal spirit, and, when two construc-

tions are possible, one restrictive of rights that

may be claimed under it and the other favorable

to them, the latter is to be preferred. * * *.”

Statute Upholds Treaty

The Immigration Act of 1924 professes to recognize

and uphold treaty rights, all as more elaborately set

forth earlier in this brief. We concede that a statute

may abrogate the provisions of a prior treaty, as up-

held by this Court in Chae Chan Ping vs. United

States (130 U. S., 581; 9 Sup. Ct., 623) ; but we con-

tend that a statute which professes to recognize a

treaty, or execute the treaty stipulations, should not

be interpreted to abrogate treaty rights which it pro-

fesses to recognize and place into effect, Chew Heong

vs. United States (112 U. S., 536; 5 Sup. Ct., 255).

We therefore contend that the present act should not

be interpreted in a manner destructive of the very

object which it claims to recognize and uphold. In

the Chew Heong case this Court, speaking through

Mr. Justice Harlan, said:

“* * * For since the purpose avowed in the

act was to faithfully execute the treaty, any inter-

pretation of its provisions would be _ rejected

which imputes to Congress an intention to disre-

gard the plighted faith of the government, and,

consequently, the court ought, if possible, to adopt

that construction which recognized and saved

rights secured by the treaty. The utmost that could

be said, in the case supposed, would be that there

was an apparent conflict between the mere words

of the statute and the treaty, and that by implica-

tion the latter, so far as the people and the courts

of this country were concerned, was abrogated in

respect of that class of Chinese laborers to whom

was secured the right to go and come at pleasure.

But even in the case of statutes, whose repeal or

modification involves no question of good faith

with the government or people of other countries,

the rule is well settled that repeals by implica-

tion are not favored, and are never admitted where

the former can stand with the new act. Ex parte

Yerger, 8 Wall., 105. In Wood vs. U. S., 16 Pet.,

362, Mr. Justice Story, speaking for the court upon

a question of the repeal of a statute by implica-

tion, said: ‘That it has not been expressly or by

direct terms repealed is admitted, and the question

resolves itself into the narrow inquiry whether it

has been repealed by necessary implication. We

say, by necessary implication, for it is not suffi-

cient to establish that subsequent laws cover some,

or even all, of the cases provided for by it, for

they may be merely affirmative, or cumulative, or

auxiliary. But there must be a positive repug-

nancy between the provisions of the new laws and

those of the old, and even then the old law is re-

pealed by implication only pro tanto, to the extent

of the repugnancy.’ In State vs. Stoll, 17 Wall.,

430, the language of the court was that ‘it must

appear that the latter provision is certainly and

clearly in hostility to the former. If by any rea-

sonable construction the two statutes can stand to-

gether, they must so stand. If harmony is impos-

sible, and only in that event, the former law is

repealed in part or wholly, as the case may be.’

See also Ex parte Crow Dog, 109 U. S., 570;

S. C. 3 Sup. Ct. Rep., 396; Arthur vs. Homer, 96

U. S., 140; Harford vs. U. S., 8 Cranch, 109.

“When the act of 1882 was passed Congress was

aware of the obligation this government had re-

cently assumed, by solemn treaty, to accord to a

certain class of Chinese laborers the privilege of

going from and coming to this country at their

pleasure. Did it intend, within less than a year

after the ratification of the treaty, and without so

declaring in unmistakable terms, to withdraw that

privilege by the general words of the first and sec-

ond sections of that act? Did it intend to do what

would be inconsistent with the inviolable fidelity

with which, according to the established rules of

international law, the stipulations of treaties should

be observed? These questions must receive a nega-

The Immigration Act of 1924, in Section 3, Subdi-

vision 6, recognizes the right of aliens to come solely

for purposes of trade under the provisions of exist-

ing treaties of commerce and navigation. Obviously

the measure of the rights of the different traders is

to be determined by the treaties of the nations to

which they belong. That nationals of one country

may be accorded more or less than the nationals of

another is to be determined by their existing treaties.

This act maintains the Immigration Act of 1917 as

the basic law upon that subject and is, as we have

earlier herein contended, to be considered in pari

materia with it. This view, as to the relation of the

Immigration Act of 1917 to the first quota act of

1921-1922, has been sustained by this Court in the

recent case of Commissioner etc. vs. Gottlieb (265

U. S., 310; 44 Sup. Ct, 528), wherein, speaking

through Mr. Justice Sutherland, the Court held:

Ce * *

“The lower court was right in holding that the

acts are in pari materia, and that Section 3 of the

earlier act is still fully operative, and may be con-

sidered as though it formed a part of the later act.

“«* * * The contention that it is absurd and

unreasonable to say that the wives and children of

ministers from the barred Asiatic zone are to be

admitted and those outside of it denied admission,

does not require consideration, since the result we

have stated necessarily follows from the plain

words of the law, for which we are not at liberty

to substitute a rule based upon other notions of

policy or justice. That aliens from one part of

the world shall be admitted according to their

status, and those from another part according to

fixed numerical proportions, is a matter wholly

within the discretion of the lawmaking body, with

which the courts have no authority to interfere.”

Under this Court’s interpretation Section 38 of the

Immigration Act of 1917, wherein it is

“Provided, That this act shall not be construed

to repeal, alter, or amend existing laws relating

to the immigration or exclusion of Chinese persons

or persons of Chinese descent, except as provided

in Section 19 hereof * * *,”

is still fully operative and may be considered as

though it formed a part of the present Immigration

Act of 1924. The rights of the Chinese, as contended

in these different Chinese Exclusion Acts, are all

based upon and profess to be but interpretative of the

treaty rights of the Chinese. As the Immigration Act

of 1924 professedly recognizes and upholds the treaty

rights in question, it is apparent, we respectfully sub-

mit, that any interpretation of this act which would

deny treaty and statutory rights which it professes

to recognize and uphold must be avoided as repellant

to the national consciousness of honor, integrity and

fair dealing, all as differently stated by the late Presi-

dent Roosevelt in the following words: “* * * we

can not expect to receive equity unless we do equity.

We can not ask the Chinese to do to us what we are

unwilling to do to them.”

Neither Section 5, nor Section 25, profess to vio-

late, or transgress, or encroach upon, treaty rights.

Section 5 states:

“* * * An alien who is not particularly speci-

fied in this act as a * * * non-immigrant shall

not be admitted as a * * * non-immigrant be-

cause of relationship to any individual who is so

specified.”

But if the wives and children are particularly speci-

fied as entitled to come in the treaty, even though

that specification be given reciprocally instead of by

reiteration, then they are exempt from the debarring

provision of Section 5, because they would be them-

selves particularly specified as in the act intended, and

hence be non-immigrants and exempt from the debar-

ring provision of Section 13, Subdivision (c) of the

Immigration Act of 1924, which is ineligible to

citizenship ban. Judge Neterer, in Ex parte Goon

Dip, 1 F. (2d) 811, 813, 814, held as follows:

“Section 25, Immigration Law 1924, provides:

‘The provisions of this act are in addition to and

not in substitution for the provisions of the immi-

gration laws, and shall be enforced as a part of

such laws. * * * An alien, although admissible

under the provisions of this act, shall not be ad-

mitted * * * if he is excluded by any provi-

sion of the immigration laws other than this act,

and an alien, although admissible under the pro-

visions of the immigration laws other than this

act, shall not be admitted to the United States if

he is excluded by any provision of this act.’

“ ‘Immigration laws’ are defined in Section 28

(g), Act, supra, to mean ‘all laws, conventions, and

treaties * * * relating to the immigration, ex-

clusion, or expulsion of aliens.’ Reference to such

laws is made in the margin.

“An immigrant is ‘an alien’ departing from any

place outside the United States destined for the

United States, * * * except ‘* * * (6) an

alien entitled to enter the United States solely to

carry on trade under and in pursuance of the pro-

visions of a present existing treaty of commerce

and navigation.’ The wives and minor children are

clearly not immigrants under Subdivision (6), Sec-

tion 3, supra.

“‘No alien ineligible to citizenship shall be

admitted to the United States unless such alien

* * * (3) is not an immigrant as defined in

section 3. Subdivision (3), Section 13, Act, supra.

The courts have for more than a generation con-

strued article 2 of the treaty, supra, to read: ‘Chi-

nese * * * merchants * * * together with

their body and household servants, wives and minor

children, shall be allowed to go and come * * *.’

“(3) The report of the committee and the ex-

press provisions of the act clearly show the intent

of the Congress not to disturb the relations existing

under the prior law and treaty. I think that this

act and the treaty and ‘immigration law’ and prior

judicial construction of the treaties and law and

departmental construction must all be considered

together, and under such consideration the court

will be slow to assume that Congress intended to

treat the treaty stipulations as a ‘scrap of paper.’

Chew Heong vs. U. S., 112 U. S., 536; 5 S. Ct,

255; 28 L. Ed., 770; U. S. vs. Mrs. Gue Lim,

supra. Hence |] think these aliens were denied a

fair hearing.

“The writ will issue, returnable October 1. This

will give opportunity to the board of special inquiry

to further examine the aliens and determine their

physical and mental fitness under the Immigration

Law, and relationship to the respective resident

alien merchants.”

Since it has been conclusively shown that the avowed

intention of Congress in the supplemental addition of

Subdivision 6 to Section 3, was to protect treaty rights

that would otherwise have been infringed upon, and

it being unmistakably shown that the Chinese Exclu-

sion Laws are not to be deemed altered, repealed or

amended by this Immigration Act of 1924 there can

appear no good reason why the congressional intention

so manifested should be given other than its full

recognition, and so considered, we have to submit that

the question certified should be answered in the nega-

tive, that is to say, that the alien Chinese wives and

minor children of Chinese merchants who were law-

fully domiciled within the United States prior to

July 1, 1924, such wives and minor children now

applying for admission, are not mandatorily excluded

from the United States under the provisions of the

Immigration Act of igh.

SUMMARY

We may now marshal the salient points we have

set up in the foregoing:

1. In considering and passing the Act of 1924,

Congress had no design to touch the Chinese Immi-

gration Acts, its attention being directed primarily to

the question of a reduced quota, the correction of

hardships in the administration of the old law, and

the exclusion of the Japanese or Asiatics other than

Chinese.

2. Congress acted in full knowledge of the fact

that in the past that the courts had treated the fami-

lies of merchants as belonging to the mercantile class

as fully as the heads of the household.

3. As affecting human rights the courts had always

taken a broad humanitarian view of the Immigration

laws seeking even in the teeth of doubtful or appar-

ently hostile language the true intent of Congress.

4. The only consistent interpretation of Section

25 of the Act of 1924 shows that the Act was in

addition to and not in substitution for the older immi-

gration laws, and so treated the Chinese Immigration

laws could be sustained in their entirety and the Act

given its full operation in a field not theretofore

covered, that is, as against Asiatics other than Chinese

who were already taken care of by other laws.

5. If we literally interpret the Act as insisted on

by the Department of Labor, an English traveler for

pleasure may not be accompanied by his wife and

children unless they come within quota limitations.

6. The government is in the position of claiming

repeal by implication of the Chinese Immigration

laws, and repeals by implication are never favored

in law.

Respectfully submitted,

FREDK. D. McKENNEY,

JOHN L. McNAB,

JACKSON H. RALSTON,

GEO. A. MCGOWAN,

Attorneys for Petitioners.

ROGER O'DONNELL,

GEORGE W. HOTT,

W. J. PETERS,

M. WALTON HENDRY,

WORLEY & GOLDBERG,

J. P. FALLON,

O. P. STIDGER,

W. G. BECKTELL,

GASTON STRAUS,

WHITE & WHITE,

Of Counsel.

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