Motion and Amicus Curiae Brief — Cheung Sum Shee v. Nagle

IN THE

Supreme Court of the United States

October Term, 1924. No. 769. 2G 4

CHEUNG SUM SHEE et al.,

Vv.

JOHN D. NAGLE, as Commissioner of Immigration

for the Port of San Francisco

ON CERTIFICATE FROM THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

Motion for Leave to file Brief as

Amicus Curiae,

and Proposed Brief of Amicus Curiae

HENRY W. TAFT,

Amicus Curiae,

40 Wall Street,

New York, N. Y.

Prinrep in U. 8. A, sy InGiE, INc., 206 Fuuton Street, New Yor« Crry.

_———_

Outline of Argument.

PAGE

as eek bse be he eh ak Ned Fhe ek oa ¥oees 1

PE Scr asceecedeulalensicneadawewaace es 2

Argument:

I. The petitioners had a right to enter the United

States under the Treaty with China of 1880,

and the Immigration Act of 1924 does not

show an intent on the part of Congress to im-

PEE oad iss cdadd Sea seedadeacdens 3

1. Treaty rights prior to the passage of the

SI Cie bre dee beneankvacsencens

2. The text of the Act—an analysis ........

3. The legislative history of the Immigration

SE EE ans Seen ens nbeke vaceeauces 14

4. Interpretation of the law by administrative

officials charged with its enforcement .... 20

5. Decisions of the lower courts under the

Immigration Act of 1924 ................ 22

II. The question certified should be answered in

EE Std a baa cas duu etwanysGcea ance 25

y

Table of Cases Cited.

Ah Yup, In re, 9 Sawyer 155 ....---essererrtee

Asakura v. Seattle, 965 U. S. 382 ...---eeeeeces

Chew Heong v. United States, 112 U. S. 536 ...---

Chinese Exclusion Case, 130 U. S. 581 ...-----s>

Chung Toy Ho, In re, 42 Fed. 398 ...------- 4, 9, 20, 24

Commissioner of Immigration v. Gottlieb, 265

BE oy ius caunenasy oye en sense es tees Sees 13

Duplex Printing Press (Co. v. Deering, 254 U. S.

BEE is we duanenme anti enae eee ns <A UROA* Se * 14

Goon Dip, Ex Parte, 1 Fed. (2d) 811 ...---+++++> 23

Ozawa v. United States, 960 U. 8.178 ...---eeeee 7

So Hapk Yon, Ex Parte, 1 Fed. (2d) 814...-.--- 23, 24

United States v. Mrs. Gue Lim, 176 U. S. 459. .4, 5, 13, 24

United States v. St. Paul M. & M. Ry. Co., 247 U.S.

See see eee eR A TER RAN EN REALS ONE 14

United States v. Thind, 961 U. S. 204 ...---- eee 7, 14

Yamashita v. Hinkle, 260 U. &. 199 ...--- eres 7

5

Yee Won v. White, 256 | On aS eee

iii

Other Authorities.

Acts of Congress: PAGE

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EL ike <o ac.e « SEEGER ERM ETA EE RIAN 4,11

kk I ee ee ree re Tr rer 14

_.. 3 eo DASRSeGRSRARESALAR ADS Cia 14

—_R oe ar rey Pra hoya 14

43 Stat. 153:

Sr ts eek i whakcuceun se ueasdkaaeen es 7

3.... 3, 6, 7, 8, 9, 10, 12, 14, 15, 17, 19, 21, 22, 23

reer ee rT ee Pe ere er rey i 7, 8,11

xwenks 2, 6, 7, 8, 9, 10, 12, 13, 14, 15, 17, 22, 25

Pree ET et eee Pee here nee ee a 7, 8, 10

ERAS DEGaKOGR ARR EAELESA Se eeba bens 7

cGkveisscd ghee ce eee akannnbachcoaae 7

Pci Wedcankanuabedalecaeeekecbare eeu 7, 10

DU kiiuckadiannoweeinaeireetasruata 7

SE ary Pyne ey eb Ree ee 7, 20

Des tecivewaancaste 2, 8, 10, 11, 12, 14, 19, 23

Soe Sa ey ene eh GN A ae petty 8

Bh Mc Ki arate et ahi deal ware «bhi A hake 7

OEE EE EEE TOPE Etre tre ere mr gert 7

Ee fDi ee eee Se ere Te TC 8

Cikeatene Ede Gs d dean dd dhe ahead kame 8

Treaties:

22 Stat. 826 (China, 1880) ................. 3, 4, 5, 6

33 Stat. 2215 (China, 1903) .................. 3

37 Stat. 1504 (Japan, 1911) ............ 17, 18, 19, 24

Congressional Record, Vol. 63:

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es eee edaseneaeenassaeeshs sees

OME cc caccssiedeneewwerse ee sdeeeeees 16, 17, 19

Oe vivcncrpesqetesswsgseseanasets es 16

Orders, etc., of the Commissioner General of Im-

migration .......sssececsscecsssesressees 4, 21, 22

IN THE

Supreme Court of the United States

October Term, 1924.

Cueunc Sum Suez et al.,

against

No. 769.

Joun D. Nacie, as Commissioner of ¥

Immigration for the Port of San

Francisco.

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE;

Also

BRIEF SHOWING THAT QUESTION CERTIFIED BY

THE CIRCUIT COURT OF APPEALS FOR THE

NINTH CIRCUIT SHOULD BE ANSWERED IN

THE NEGATIVE.

Now comes Henry W. Tart, an attorney and coun-

sellor of this Court, and represents that there is involved

in the above entitled case a question arising under the

Immigration Act of 1924, approved May 26, 1924 (43

Stat. 153, c. 190), certified to this Court under Judicial

Code, Section 239, the answer to which will vitally affect

* the interests and status of a number of his clients, who

would be prejudiced by a decision affirming the posi-

2

tion taken below in the above entitled case by the Com-

missioner of Immigration and by the Government.

Therefore, he prays leave to file a brief and argument

as Amicus Curiae to the end that the question certified by

the Circuit Court of Appeals for the Ninth Circuit be an-

swered in the negative. He is permitted by Counsel for

the petitioners herein and by Counsel for the Govern-

ment to say that they have no objection to the granting

of such leave.

The brief and argument proposed to be submitted is

as follows:

Statement.

In the decision below the District Court for the

Northern District of California, Second Division, denied

the right of entry into the United States of wives and

minor children of Chinese merchants who were them-

selves not eligible to citizenship, but who were lawfully

domiciled in the United States. The ground for the ex-

clusion of the petitioners was based by the Court upon

the provisions of Sections 5 and 13 (c) of the Immigra-

tion Act of 1924 [2 Fed. (2d) 995}.

On appeal the Circuit Court of Appeals for the Ninth

Circuit did not decide the case, but certified to this

Court the question, viz: ‘‘ Are the alien Chinese wives and

minor children of Chinese merchants who were lawfully

domiciled within the United States prior to July Ist,

1924, such wives and children now applying for admis-

sion, mandatorily excluded from the United States under

the provisions of the Immigration Act of 1924?’ (Rec.,

p. 2).

The answer to the questicn certified involves a con-

sideration of the following question :

Is there to be deduced from Section 5 and other

provisions of the Immigration Act of 1924 (43

Stat. 153, c. 190) an intent on the part of Congress

3

to nullify the provisions of the Treaty of Novem-

ber 17, 1880 (22 Stat. 826) between the United

States and China, to the extent of denying the

right of entry to the wife and children of a Chinese

merchant, he himself being admissible though an

alien ineligible to citizenship, which they had

previously enjoyed under the said Treaty?

POINT L

The petitioners had a right to enter the United States

under the Treaty with China of 1880, and the Immigra-

tion Act of 1924 does not show an intent on the part of

Congress to impair that right.

1. Treaty rights prior to the passage of the Act of 1924.

The relevant portion of the Chinese Treaty of 1880 is

Article II (22 Stat. 827):

‘‘Chinese subjects, whether proceeding to the

United States as teachers, students, merchants or

from curiosity, together with their body and house-

hold 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.’’

This Treaty must be read in connection with the

Treaty of Commerce and Navigation of 1903 (33 Stat.

2215), by Article XVII of which it is virtually incorpo-

rated by reference. The provisions of the Treaty have

been recognized by the Department of State and the De-

partment of Labor as constituting a treaty of ‘‘commerce

and navigation’’ within the meaning of Clause (6) of Sec-

tion 3 of the Immigration Law of 1924 which excepts from

the exclusion provision of the law ‘‘an alien entitled to

4

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.’’ (See Circular,

Bureau of Immigration, August 7, 1924, entitled

‘‘Chinese General Order No. 4’’, under caption of ‘‘Non-

Immigrants’’).

Prior to the passage of the Immigration Act of 1924

the question was presented whether, under Article II of

the Treaty of 1880, supra, wives and children of Chinese

merchants were entitled to the privileges conferred by the

Treaty upon the merchants themselves. This question

was answered in the affirmative by this Court in United

States v. Mrs. Gue Lim, 176 U. S. 459 (1900). The Court

took the broad view that

‘it is not possible to presume that the treaty,

in omitting to name the wives of those who by the

second article were entitled to admission, meant

that they should be excluded.’’ (p. 466).

The Court, after referring to a divergence of views

on the part of Federal District Judges who had had to

pass on the question, expressly approved the line of rea-

soning pursued by Dzapy, D. J., in the case of In re

Chung Toy Ho, 42 Fed., 398 (C. C., Ore., 1890). In that

case Judge Deady, after referring to the intention of

Congress in passing the Chinese Exclusion Act of 1884

(23 Stat. 115), which was designed to carry the Treaty

of 1880 into effect, and after pointing out that under that

Treaty a Chinese merchant might bring his ‘‘body and

household servants’? with him into the United States,

said (pp. 399-400) :

‘<Tt is impossible to believe that parties to this

treaty, which permits the servants of a merchant

to enter the country with him, ever contemplated

the exclusion of his wife and children. And the

reason why they are not expressly mentioned, as

entitled to such admission, is found in the fact

5

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 in 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.

* * a - * * *

‘‘My conclusion is that under the treaty and

statute, taken together, a Chinese merchant who

is entitled to come into and dwell in the United

States is thereby entitled to bring with him, and

have with him, his wife and children. The com.

pany of the one, and the care and custody of the

other, are his by natural right; and he ought not

to be deprived of either, unless the intention of

Congress. to do so is clear and unmistakable.’’

(Italics ours.)

United States v. Mrs. Gue Lim, supra, was cited in

Yee Won v. White, 256 U. S., 399, 400 (1921). While

the wife and minor children who were the petitioners

in that case were excluded because the status of the hus-

band and father had changed from that of merchant to

that of laborer, nevertheless the Gue Lim case was re-

ferred to as one which had established the proposition

that the wife of a Chinese merchant could not be excluded

under the Treaty, “‘since this would obstruct the plain

purpose of the Treaty of 1880 to permit merchants freely

to come and go’’ (p. 401; italics ours).

Such being the situation as regards the Treaty with

China at the time of the passage of the Immigration

Act of 1924, we turn next to the text of the Act. Later

we shall refer to numerous expressions of Congressional

intent which without exception support our contention.

6

2. The text of the Act—an analysis.

Section 3-(6) of the Act excepts from the term ‘‘im-

migrant’’, as used in the Act, ‘‘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’’. Under familiar principles

of law, Congress must be presumed to have been familiar

with the judicial interpretation already alluded to by

which the term ‘‘merchants”’ as used in the Treaty of

1880 was held to include wives and children of ‘‘mer-

chants’’. See Hecht v. Malley, 965 U.S. 144, 153 (1924) ;

Ex parte Goon Dip, 1 Fed. (2d) 811, 813 (1924), post, p.

93. And under such interpretation the pertinent part of

Section 3 of the Act would be equivalent to the f ollowing,

viz:

‘‘When used in this Act the term ‘immigrant’

means an alien departing from any place outside

the United States destined for the United States,

except * * °* an alien entitled to enter the

United States solely to carry on trade under and

in pursuance of the provisions of a present exist-

ing treaty of commerce and navigation, and his

wife and children.”’

The question raised here is whether the treaty rights

thus enjoyed by the wife and children of a Chinese mer-

chant before the passage of the Act of 1924 have been

taken away by the second sentence of Section 5 of the

Act, which provides as follows:

‘An alien who is not particularly specified in

this act as a non-quota immigrant or a non-immt-

grant shall not be admitted as a non-quota immi-

grant or a non-immigrant by reason of relation-

ship to any individual who is so specified or by

reason of being excepted from the operation of

any other law regulating or forbidding immigra-

tion.’’ (Italics ours.)

7

A correct understanding of this provision requires a

brief review of the provisions of the Act of 1924 and

their general purpose.

Two principles of exclusion of aliens were sought to be

put into effect by the statute. These are quite distinct

from each other and are based upon independent con-

siderations of policy. Upon the first principle, admissi-

bility of aliens is limited to quotas which are established

at fixed percentages of persons who are already lawfully

within this country and are of the same nationality or of

the same national origin as those seeking admission. The

second principle is that of excluding (with certain speci-

fied exceptions) aliens “ineligible to citizenship’’, that

class being principally members of Oriental races who

are deprived of the right of becoming American citizens

because they are not ‘‘free white persons’’ or ‘‘aliens of

African nativity’? or “‘persons of African descent”’

(Section 2169 R. S., applied in Ozawa v. United States,

260 U. S. 178 [1922], Yumashita v. Hinkle, 260 U. S. 199

[1922], United States v. Thind, 261 U. S. 204 [1923]).

Most of the elaborate provisions of the Immigration

Act of 1924 relate to the first mentioned class. Sece-

tion 2 relates to immigration visas. Section 3 defines

an immigrant, making certain exceptions, including the

merchant class already referred to. Section 4 relates to

non-quota immigrants, and obviously has no relation to

the class who are ineligible to citizenship. Section 5

is entitled “‘Quota-Immigrants’’, and we think that an

examination of the Act will show that it was intended to

apply only to the class referred to in its caption, that is,

to ‘‘quota-immigrants’’. Section 6, entitled ‘‘ Preferences

Within Quotas’”’, obviously refers to the Quota system.

Section 7, referring to an application for an immigra-

tion visa, Section 8 providing for ‘‘non-quota’’ immi-

gration visas, Section 9 entitled ‘“Tssuance of immigra-

tion visas to relatives’, Section 11 entitled ‘‘Numerical

Limitations’, Section 12 entitled ‘‘Nationality’’, Sec-

8

tion 17 relating to entry from foreign contiguous ter-

ritory and Section 18 relating to ‘‘Unused immigra-

tion visas;—all these relate to the Quota system. The

only sections of the law which more or less bear upon

the question of the exclusion of aliens ‘‘ineligible to

citizenship’’, are Section 3 defining the word ‘‘immi-

grant’’, Section 9 already referred to, Section 13,

which is the comprehensive section dealing as its title in-

dicates with ‘‘Exclusion from the United States’’, Sec-

tion 15 relating to ‘‘Maintenance of Exempt Status’’,

Section 28, in which are given general definitions of

terms employed in the preceding sections of the act, and

possibly Section 29, providing that an alien admissible

under some other law ‘‘shall not be admitted to the

United States if he is excluded by any provision of this

Act.”’

The provisions relating to burden of proof, rules and

regulations and penalty provisions, do not affect the

question under consideration.

The attempt by Congress to merge in one act provi-

sions for the quota system of exclusion and that based

upon ineligibility to citizenship, has led to some confu-

sion in phraseology which requires careful analysis.

Bearing these facts in mind, we first take up the pro-

visions of Section 5.

As we have said the caption of this Section describes

it as referring only to ‘«quota-immigrants’’. If its

terms relate to that class alone it is logically inserted

between Section 4 and Section 6, for Section 4 de-

fines non-quota immigrants and Section 6 describes

the preference within quotas, while Section 5 defines

‘‘Quota immigrants’’ as those who are not non-quota

immigrants; it does not define ‘‘immigrants’’,—that was

done by Section 3. If the title of the section is cor-

rect in confining its application to ‘‘quota immigrants”’

then there is an inconsistency in the reference in the

second sentence of the section to ‘‘a non-immigrant’’;

9

for there is not in any of the quota provisions of the

entire act any alien subject to the quota provision who

could be described as a ‘‘non-immigrant’’, all of those

provisions referring solely to immigrants who are either

“quota immigrants’’ or ‘‘non-quota immigrants.’’

But it is upon this use of incongruous terms in sec-

tion 5 that the principal argument is based that there is

an intention by the provisions of the section to nullify the

exclusion from the definition of ‘‘immigrant’’ the wives

and children of Chinese merchants, although not affecting

the status of the merchants themselves. In other words,

the claim is that, in spite of the inconsistency of the

words in the title and in the body of Section 5, there is to

be ascribed to Congress an intention to qualify the ex-

emption under subdivision (6) of Section 3 so as to ex-

clude the wife and children of a Chinese merchant, al-

though ‘‘in pursuance of the provisions’’ of the existing

treaties with China, they were admissible as a part of

the merchant class. We submit that there is no such

‘clear and unmistakable”’ intention to accomplish such

a serious result to be implied from the careless use of

the word ‘‘non-immigrant’’ in Section 5. (In re Chung

Toy Ho, ante, p. 4.)

Section 5 had not been formulated in its present form,

as we shall more fully show below, when subdivision

(6) of Section 3 was inserted in the act; and at that

time the provisions of Section 5 would not have had the

serious effect of taking away from Chinese merchants

and their families treaty rights then enjoyed by them,

for by the first exception in Section 3 exemption was

extended to the family of a government official, and in

the exemptions (2), (3) and (4) the wives and families

of the aliens referred to would themselves, without

specification and in their own right, come within the ex-

empted classes, while an alien seaman under (5) would

10

not generally be expected to be accompanied by his wife

or family. It was only when, late in the progress of the

pill in the House of Representatives and the Senate,

subdivision (6) of Section 3 was inserted, and the second

sentence of Section 5 was transferred to that section

from another quota section, tnat support was given for

the argument now made that a serious curtailment of

the treaty rights of the merchant class was intended.

The importance of the relationship provision of Sec-

tion 5 arose only in connection with the quota system,

and the sole machinery for dealing with it was provided

for in Section 9 which was clearly a quota section. That

section provides for the manner in which visas may be

issued to relatives under Section 4, subdivision (a), and

to relatives who, under Section 6, are entitled

to a preference within the quota. These were the only

eases where admission or preference could under the

Act be claimed on account of relationship. They are

not eases which affect the quota, although they both are

properly cared for in a system based on quotas and non-

quotas. If the second sentence of Section 5 is interpreted

as excluding all persons dealt with in the quota system

who claim entry by virtue of relationship to persons

entitled thereto as non-quota immigrants, we make it

consistent with its title ‘‘Quota Immigrants’’ and a

natural concomitant of Section 9. And then if Section 13

is treated as containing all the controlling provisions of

the act for the exclusion of all aliens intended to be ex-

cluded, the incongruities we have referred to will be

avoided.

The purpose that Section 13 shall perform the office of

providing for all cases of exclusion is indicated in its

title, which is ‘‘Exelusion from the United States’’; and

the text of the section itself clearly differentiates be-

tween the two systems of exclusion, that is, the quota

system, and that for the exclusion of aliens ineligible to

citizenship.

11

Subdivision (a) of Section 13 provides as follows:

‘*(a) No immigrant shall be admitted to the

United States unless he (1) has an unexpired im-

migration visa or was born subsequent to the is-

suance of the immigration visa of the accompany-

ing 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 immigra-

tion visa as such, and (4) is otherwise admissible

under the immigration laws.’’

Obviously this is intended as a comprehensive pro-

vision for the exclusion of all those who have not com-

plied with the quota provisions of the law. Subdivisions

(b), (d) and (e) deal with temporary and special cases

and need not be especially referred to.

Subdivision (c) provides as follows:

‘*(c) 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 (e) of

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

child under eighteen years of age, of an immigrant

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

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

an immigrant as defined in section 3.”’

Section 4 makes no distinction between immigrants

who are and those who are not eligible for citizenship.

Its office is solely to exclude from the quota count certain

specified classes. But the classes mentioned in subdivi-

sions (b), (d) and (e) of Section 4 might be ‘‘ineligible to

citizenship”’ although under some earlier law or treaty

they were lawfully in this country.* Hence it was neces-

“It is well known that prior to the passage of the Chinese Exclusion

Act (23 Stat. 115, ¢. 220), there were thousands of aliens in this country

who were incapable of being naturalized. This appears from the observa-

tions of this Court in the Chinese Exclusion Case, 130 U. 8. 581, 594-596

(1889), read in the light of decisions under U. 8S. R. S. See. 2169, such as

In re Ah Yup, 5 Sawyer 155 (C. C. Cal., 1878).

12

sary to except them from the exclusion provision of Sec-

tion 13, to avoid conflict between the two sections.

If Subdivision (c) of Section 13 be amplified by the

inclusion of the pertinent provisions of Section 3 it

would read:

‘‘(¢) No alien ineligible to citizenship shall be

admitted to the United States unless such alien is

‘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.’ ”’

Thus interpreted Section 13 would include the wife

and children of a Chinese merchant. Such an interpreta-

tion would effect what its caption indicates, that is, ‘‘ex-

clusion from the United States’’ in all cases in which

exclusion is intended. If then Section (5) is construed,

as its title indicates, as applicable only to ‘‘quota immi-

grants,’’ the two sections are not inconsistent but provide

the necessary parts of a harmonious scheme.

It is true that this interpretation requires a rejection

of the words ‘‘a non-immigrant’’ in Section 5 as be-

ing inapplicable to one of the ‘‘non-immigrants’’ ex-

cepted from the provisions of Section 3, that is, an

alien of the merchant class provided for in subdivision

6 of the latter section. But it would still be applicable

to those cases provided for in subdivisions (2), (3), (4)

and (5) of Section 3, because, first, those were, as we

shall point out, the only provisions in the section when

Section 5 were first drafted, and, second, because in no one

of those four exceptions is a case presented in which

within the reasoning of the decisions of the Court in

relation to the merchant class, Congress could be deemed

to have intended to include the wives or the families un-

less they were specified. The same cannot be said

in relation to subdivision (6) and in spite of the lan-

guage of Section 5, that subdivision can reasonably

be read to mean that an alien merchant was to enjoy all

_—

13

of the rights conferred upon him by any existing treaty

of commerce and navigation, including the right, as the

Chinese treaty had been interpreted by the courts, of

having the company of his wife and children because they

were of the merchant class. It would not do violence to

canons of statutory interpretation to say that when Con-

gress excepted from the class of immigrants alien

merchants, the wives and children of aliens were “ partic-

ularly specified in this act’’ and were, therefore, not with-

in the prohibition of the second sentence of Section 5.

Without recourse to close or highly technical reasoning,

the Courts practically have said that the family of a

Chinese merchant are themselves members of the mer-

chant class. In United States v. Mrs. Gue Lim, 176 U.S.

459 (1900), ante, p. 4, for instance, this Court held that

the clause in the Chinese Exclusion Treaty providing for

the admission of ‘‘Chinese * * * merchants * * * together

with their body and household servants * * *?? should be

construed to include the wife and minor children of

Chinese merchants. If the same liberality of interpreta-

tion is applied to the provisions of the Immigration Act

of 1924, and weight is given to the humane considerations

which have influenced the courts on former occasions

in interpreting the Chinese Exclusion Act, there should

be no difficulty in so construing the Act of 1924 as not to

impair the treaty rights of wives and children of Chinese

merchants. And such an interpretation would be con-

sonant with the general principle that when a statute ad-

mits of either of two constructions, one restrictive of

rights that may be claimed under a treaty, and the other

favorable to them, the latter is to be preferred. Cf. Chew

Heong v. United States, 112 U. 8. 536, 549-550 (1884) ;

Asakura v. City of Seattle, 265 U.S. 332, 342 (1924).

Nothing in Commissioner of Immigration v. Gottlieb,

265 U. S. 310 (1924), militates in any way against the

liberal construction of the Act of 1924 hereinabove con-

14

tended for. In the first place, the Gottlieb case involved

no treaty whatsoever; in the second place, an express

provision in the 1917 Act (39 Stat. 874, ec. 29) exempted

from the excluding provisions ‘‘ministers * * * their

legal wives or their children’’ only when such ministers

were immigrating from the barred Asiatie zone, whereas

Gottlieb came from Palestine. Nor could Gottlieb suc-

cessfully invoke the 1921 Acts (42 Stat. 5, c. 8; 42 Stat.

540, c. 187), since the pertinent exemption of these acts

applied to ‘‘ministers of any religious denomination”’

without mentioning their wives and children; and neither

the other provisions of the Act of 1917 nor its legislative

history justified a construction of the statute more

broad than its plain language required.

- The Legislative History of the Immigration Act of

1924.

If there is any reasonable doubt as to the meaning

of the Immigration Act of 1924, recourse may be had to

the committee reports and to the explanatory statements

made before Congress by committee members for the pur-

pose of showing the real intention of Congress. United

States v. St. Pau M. & M. Ry. Co., 247 U. S., 310, 318

(1918) ; Duplex Printing Press Co. v. Deering, 254 U.S.,

443, 475 (1921); United States v. Bhagat Singh Thind,

961 U. S., 204, 214 (1923).

A. The provision excluding aliens ineligible to citizen-

ship was embodied as Section 12, then entitled ‘‘Kx-

clusion from United States’’, in the original bill as re-

ported by the Immigration Committee of the House on

February 9, 1924 (H. R. 6540). The bill did not at that

time contain the second sentence of Section 5, which

was then entitled ‘‘Quota Immigrants”’ and provided

only that ‘‘When used in this Act the term ‘quota immi-

grant’ means any immigrant who is not a non-quota im-

migrant’. The bill as introduced in the Senate, did not

contain any provision relating to the exclusion of aliens

ineligible to citizenship. (See Section 3, S. 2576, page

15

5, and Congressional Record, Vol. 65, page 5415).

The only section in that bill relating to exclusion related

(1) to the case of an immigrant requiring a visa under

the quota system, and (2) to legally admitted immigrants

temporarily leaving the United States. It did contain,

however, but in a form which made it applicable solely

to the quota system, the provision which afterwards

became the second sentence of Section 5. It was then

embodied in Section 3, the caption of which was, ‘‘ Defini-

tion of Immigrant’’, and was as follows (draft of Feb-

ruary 16, 1924, p. 5):

‘*No person, who himself is not within any of

the exceptions specified in this section, shall be ex-

cepted from the quota restrictions created by this

Act by reason of his relationship to any person

who is so excepted or by reason of being excepted

from the operation of any other law regulating or

forbidding immigration.’’ (Italics ours.)

It is significant that this relationship clause was not

made applicable to aliens not eligible to citizenship for

at that time Section 3, in its definition of an immigrant,

made an exception of ‘‘an alien entitled to enter the

United States under the provisions of a treaty.’’ Clearly,

therefore, in its origin the relationship provision was

intended to be a feature of the quota system alone. (See

S. 2576, 68th Congress, First Session, February 16, 1924).

Not until April 2, 1924, was the provision, slightly

amended, but substantially in the same form, agreed to

in the Senate. (Congressional Record, Vol. 65, page

5418).

This view of the matter is confirmed by the Report of

the House Committee on Immigration, page 4, (No. 176,

68th Congress, First Session, to accompany H. R. 6540,

dated February 9, 1924).

In defining the difference between quota immigrants

and non-quota immigrants the Committee said (p. 9):

‘‘As hereinbefore noted, the bill provides for

admission of certain alien immigrants as ‘non-

16

quota immigrants’ exempt from count under all

quota limitations. But the ‘non-quota immigrant’

as well as the ‘quota immigrant’ must obtain an

immigration certificate. And if he claims to be a

non-quota immigrant by reason of relationship to

a citizen of the United States (as in subdivision

(a) of Sec. 4), his immigration certificate is issu-

able only after his case has received consideration

in the Bureau of Immigration upon petition filed

by the relative whom he proposes joining in the

United States.”’

Upon proof of compliance with the preliminaries pro-

vided for in the bill the Commissioner General of Im-

migration was to ‘‘authorize the consul to issue a ‘non-

quota’ immigration certificate to the intending immi-

grant,’’ that is to the one claiming by virtue of rela-

tionship. (Report, p. 10). There is no intimation that

the provision was to apply to an alien who was not, under

Section 3, an immigrant.

In the Report (No. 350, 68th Congress, First Session)

of the House Committee on Immigration and Naturaliza-

tion (committed to the Committee of the Whole House on

March 24, 1924), the Committee repeated that the rela-

tionship provision of the bill (H. R. 7995) was intended

to be applied only to non-quota immigrants (Report,

p. 18).

Finally, the Report (No. 716, 68th Congress, First Ses-

sion, May 12, 1924) of the Managers on the part of the

House in the Committee of Conference reported back the

bill (H. R. 7995) and for the first time there appeared the

second sentence of Section 5. There was no statement

of the reason for its insertion. If it had been the inten-

tion to extend the application of the relationship pro-

vision, which up to this point had clearly been confined in

its application to immigrants who came within the quota

provision of the statute, the managers would surely not

have omitted some explanation of such a radical change.

It is incredible that after it had been repeatedly stated,

as we shall show that it was, both in the House and in the

Senate, that treaty rights of persons had been fully

_—

17

protected (see page 4, House Report No. 350), Congress

could have intended, by the insertion at the last moment

of the second sentence of Section 5, to diminish those

rights in the manner now claimed by the Government.

B. Statements of Committees and Members of the

House and the Senate. On April 27, 1924, Senator Short-

ridge in the Senate offered the amendment which in sub-

stance was embodied in Section 3, and by the terms of

which there were excepted from the definition of immi-

grants ‘‘an alien entitled to enter the United States solely

to carry on trade under and in pursuance of the provi-

sions of a present existing treaty of commerce and navi-

gation.’’ He also offered an amendment in the following

words:

**(c) 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 section 3.”

Speaking of these two amendments he said:

‘‘These amendments recognize and in no degree

annul any existing treaty of commerce and navi-

gation.’’ (65 Congressional Record, p. 5741).

(Italics ours.)

Referring to Secretary Hughes’ letter of February

8, 1924, addressed to Congress for the purpose of pre-

venting an impairment of treaty rights, he said:

‘“‘What Secretary Hughes feared was lest by

this legislation we offend against existing treaties.

We have avoided that altogether in the bill. [Con-

gressional Record, Vol. 65, p. 5743] * * * the See-

retary of State will now see clearly that we

do not propose in this bill in any wise to modify,

annul, or disregard the provisions of the treaty of

1911.’’ (Congressional Record, Vol. 65, p. 5744;

italics ours.)

18

And again:

“Whatever rights are guaranteed to Japan

under that treaty are to remain. We are not dis-

posed to question the terms of the treaty. There

it is. This Nation has set its hand to it. There is

the treaty, and there let it be, and let it be ob-

served.’’ (Congressional Record, Vol. 65, p. 5746;

italics ours.)

And again:

«<* * * we respect not only this treaty but all

existing treaties of commerce and navigation, as

my proposed amendment specifically states.”’

(Congressional Record, Vol. 65, p. 5806).

Senator Shortridge called attention specifically to the

fact that when on February 8, 1924, the Secretary of State

suggested that the bill in its then form was violative of

treaty obligations, ‘‘the House bill did not contain the

provision it now contains, and which I propose to incor-

porate in the Senate bill, namely, the provisions specifi-

eally stating that it shall not interfere with the coming

of any peoples who come under or pursuant to any treaty

of commerce and navigation.’’ (Congressional Record,

Vol. 65, p. 5809; italics ours.)

On April 8, 1924, Senator Reed of Pennsylvania, who

was in charge of the bill in the Senate, said that after

consultation with the two Senators from California and

the Senator from Arkansas, and with Congressman John-

son of Washington, who had charge of the bill in the

House, and with others who had been active in the pas-

sage of the Immigration Law, he proposed an exclusion

section which was ‘‘in accordance with the bill that al-

ready has passed the House.’’ The amendment referred

to contained the provision:

‘«(¢) No alien ineligible to citizenship shall be

admitted to the United States unless such alien

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

ss

19

provisions of Section 3.’’ (Congressional Record,

Vol. 65, p. 6377.)

Expressions in the reports of the Committee on

Immigration and Naturalization of the House of Rep-

resentatives show that there was no intention to affect

the treaty rights. In his letter of February 8, 1924,

Mr. Hughes, the Secretary of State, had called at-

tention to the effect upon the treaty rights of Jap-

anese merchants under Article 1 of the treaty of

Commerce and Navigation between the United States and

Japan concluded in 1911, and his comment was that Sec-

tion 12, subdivision (b) (subsequently enacted as Section

13, subdivision (c)), taken in connection with Sections 3

and 4 of the proposed bill ‘‘operates to exclude Jap-

anese’’ and ‘‘establishes a statutory exclusion.’’ (House

Report No. 350, page 4.) Under the caption ‘‘Protec-

.tion of Treaties’? the Committee reported (p. 2):

‘The suggestions of Secretary Hughes for the

protection of treaties of the United States with

other countries have been met by the addition to

= 3 (p. 5) of an additional exempted class,

o-wit :

‘**(6) An alien entitled to enter the United

States solely to carry on trade under and in pur-

suance of the provisions of a present existing

treaty of commerce and navigation.’ ”’

This is the exact form in which the exemption was

stated in the bill as passed. The Committee adds (p. 6):

‘*So far as concerns the treaty of 1911, the com-

mittee assumes that the modifications now made

in the bill will remove the Secretary’s objections,

* * *# 9)

Subsequently, on the floor of the House of Repre-

sentatives, Mr. Johnson the Chairman of the Committee,

stated :

‘‘We undertake to make full provision for * * *

all who may want to come in under any of the

provisions of any treaty we may have with the

other nations of the world.’’ (65 Congressional

Record, 5649. See many other expressions of sim-

ilar import, at pp. 5649, 5661, 8229 and 8233.)

It must, of course, be presumed that Committees and

Members of Congress knew, when they passed the Act

of 1924, what the rights of aliens under existing treaties

were. Those rights were not created by the decisions of

the Courts. They existed by virtue of the treaties them-

selves. In In re Chung Toy Ho, 42 Fed. 398 (C. C. Ore.,

1890), ante, p. 4, the Court pointed out that wives

and children of merchants belonged to the merchant class

within the fair intendment of the Chinese treaty, and it

is to that effect of the treaty to which members of Con-

gress must be deemed to have referred in the expressions

we have quoted above.

4. Interpretation of the law by administrative officials

charged with its enforcement.

The views presented above find some confirmation in

the interpretation which has already been placed upon

the act of 1924 by the Secretary of State, the Secre-

tary of Commerce, the Secretary of Labor and by the

President himself. Under the provisions of Section

12, it is the duty of the three Secretaries referred to

to report annually to the President the quota allotted

to the several nationalities of the world. On the basis

of reports thus made, the President on June 30, 1924,

issued a proclamation putting the quotas into effect.

These quotas were established only for those countries

whose citizens were eligible to citizenship. It is true that

a minimum quota of 100 was established for those coun-

tries whose inhabitants were not generally eligible to

citizenship (e. g., China), but this was not a minimum

fixed in relation to aliens ineligible to citizenship, for in

the proclamation the President expressly stated that

21

the minimum quota was to be ‘available only for per-

sons born within the respective countries who are eligible

to citizenship in the United States and admissible under

the Immigration Laws of the United States.’ This in-

terpretation clearly recognizes that there was no quota

of any kind established for aliens not eligible to citizen-

ship. The provision made by the President only related

to those few cases where there might be aliens residing

in China, for instance, who happened to be for some

reason eligible to citizenship in the United States.

The general orders of the Bureau of Immigration of

the United States Department of Labor also recognized

that the quota system is not applicable to immigrants

who are exempt under the provisions of Section 3. Re-

ferring to that section in the Second Supplement to Gen-

eral Order No. 30, under date of July 3, 1924, the Com-

missioner General has made the following provision:

“Aliens of this class, while not required to pre-

sent an immigration visa, must be possessed of a

regular passport bearing the Consul visa.’’

In other words an alien of the class referred to must have

& passport similar to that required from any foreigner

not subject to quota provisions.

In the Third Supplement to the General Order, under

date of August 1, 1924, it is provided as follows:

**2. No alien shall be admitted to the United

States as a non-immigrant unless such alien shall

present to the proper immigration official, at the

port of arrival, a passport visa duly issued and

authenticated by an American consular officer;

* © @ +

It is significant that in this same order it is provided

as follows:

“‘1. No immigrant whether a quota immigrant

or non-quota immigrant of any nationality shall

be admitted to the United States unless such immi-

grant shall present to the proper immigration of-

22

ficial, at the port of arrival, an immigration visa

duly issued and authenticated by an American con-

sular officer; * * *.’’

Thus, the distinction between an immigration visa in the |

ease of those coming within the quota provisions of the

act and the passport visa applicable to aliens who are not

immigrants and who are exempt under Section 3, seems

to be accepted by the Bureau of Immigration. Some con-

fusion seems to have existed in the Bureau, and on Octo-

ber 27, 1924, the Commissioner General issued the fol-

lowing order as the Seventh Supplement to General

Order No. 30, namely:

‘As the Fourth Supplement to General Order

No. 30 directing that surrendered immigration

visas be forwarded to the Bureau of Naturaliza-

tion, Department of Labor, Washington, D. C., has

no practical application to persons of races inelt-

gible to citizenship, it is, therefore, directed thai

the surrendered immigration visas of such persons

be retained at the ports where surrendered.”

(Italics ours.)

These references serve to show that the two systems

of exclusion already referred to are independent of each

other.

5. Decisions of the lower courts under the Immigra-

tion Act of 1924.

The District Court in the case at bar admitted

the strength of the argument that ‘‘husbands and

wives and their children have a natural right to be

and reside with one another, a right universallly recog-

nized and enforced by municipal laws’’, but he added that

such right must of necessity give way to the sovereign

right of a state to dictate what alien persons should ‘‘be

permitted to come within its territorial boundaries.”

Without much amplification of reasoning and with

scarcely more than a reference to the several sections of

the Immigration Act of 1924, the court concluded that a

careful consideration of Section 5, ‘¢eonvinces me that the

23

construction of subdivision (6) of Section 3 thereof, upon

which the contention is founded, has been by Congress

excluded ex industria.’’ The attention of the court was

not apparently called to the two systems of exclusion dis-

cussed above, and the decision was based upon a narrow

interpretation of the phraseology of two sections of the

act, without consideration of its general scope and pur-

pose.

Two other decisions deserve notice. In Ex Parte Goon

Dip, 1 Fed. (2d) 811 (District Court, W. D. Washington,

1924), a question arose as to whether the wife or minor

children of a resident Chinese merchant were excluded

by the provisions of the act of 1924. Judge Neterer re-

viewed the decisions prior to the passage of the act hold-

ing that the wife and minor children of Chinese mer-

chants were admissible in spite of the Chinese Exclusion

Act, and after an examination of the several provisions

of the act, concluded as follows, viz. (p. 813) :

‘The report of the committee and the express

provisions of the act clearly show the intent of the

Congress not to disturb the relations existing

under the prior law and treaty. I think that this

act and the treaty and ‘immigration law’ and prior

judicial construction of the treaties and law and

departmental construction must all be considered

together, and under such consideration the court

will be slow to assume that Congress intended to

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

In Ex Parte So Hakp Yon, 1 Fed. (2d) 814 (1924),

decided the day after the decision in Ex Parte Goon Dip,

the same Judge held that the wife of a Japanese mer-

chant was not admissible under Section 13 of the Im-

migration Act of 1924 because the provisions of the

treaty with Japan of April 5, 1911, were not such that

they could be reasonably interpreted as intended to

permit the entry of wives of Japanese merchants. The

24

court distinguished between the Chinese Exclusion Act

of 1880 which provided for the admission of ‘*Chinese

* * * merchants * * * together with their body and

household servants’’, and the Japanese treaty of April

5, 1911, which provided as follows (Article I, 37 Stat.,

1504) :

“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 and commercial pur-

poses, and generally to do anything incident to or

necessary for trade upon the same terms as native

citizens or subjects, submitting themselves to the

laws and regulations there established.’’

A consideration of this treaty is not involved in the

ease at bar, but it is proper to say that the interpreta-

tion of the District Judge is not consonant with the

liberality of interpretation approved by the decisions

above referred to, rendered before the passage of the act

of 1924. The right ‘‘to enter, travel and reside’’ and

‘to own or lease and occupy houses”’, and to ‘‘lease

land for residential * * * purposes’’, and ‘‘generally to

do anything incident to or necessary for trade upon the

same terms as native citizens or subjects * * *’’ is even

more comprehensive and more inclusive than the words

“together with their body and household servants’’ em-

ployed in the Chinese Exclusion Treaty. All of the argu-

ments of Judge Deavy in In Re Chung Toy Ho (supra,)

concurred in by this Court in United States v. Mrs. Gue

Lim, supra, ought to have led to a broader interpreta-

tion than that of Judge Neterer in the So Hakp Yon case.

Furthermore, for reasons already fully set forth in our

argument above, J udge Neterer failed to give weight to

25

the two systems for admission of aliens into this country.

He said [1 Fed. (2d), at p. 815]:

‘‘This section [5] expressly excludes the wife,

as the husband is a non-quota immigrant, and she

may not be admitted by reason of such relation-

ship.’’ (Italies ours.)

This, for the reasons we have already sufficiently

stated, shows that the District Judge incorrectly assumed

that the husband was a non-quota immigrant, whereas,

under Section 3, he was not an immigrant at all.

POINT II.

For these reasons it is respectfully submitted that the

question certified by the Circuit Court of Appeals should

be answered in the negative.

HENRY W. TAFT,

Amicus Curiae.

New York, March 20th, 1925.