# Petition — Cheung Sum Shee v. Nagle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1925
- **Citation:** 268 U.S. 336

## Text

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-

2

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

3

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

4

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.

5
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

6

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

7

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

8

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

9

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

10

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.

1!
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

a

12

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-

13

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

14

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. * * *

15

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.”

16

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

17

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,

.

18

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

19

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

20

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

21

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:

22
“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;

(c) An immigrant who was born in the Domin-
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

23

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.”

24
“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.

(c) No alien ineligible to citizenship shall be

25

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.”

26
“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.”

27
“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.

(c) The term ‘ineligible to citizenship,’ when
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.”

28

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

29

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.”

30
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

31

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

32

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-

33

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

34

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

35

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,

36

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-

37

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

38

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

39

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

40

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.

41

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-

42
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

43

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

44

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.

45

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.

46

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-

47

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

48

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-

49

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 «=

50

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;” * ¢ @

s1

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-

$2

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.

53

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

M4

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-

55

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

56

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. * * *.”

57
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.

58

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

59

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-
tive answer. *.* ©.”

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.

60

“«* * * 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

61

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

62

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

63

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.

64
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

65

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0259%3A2. Public record. Not legal advice.