Ex parte Woo Jan

• Citation: 228 F. 927
• Parties: Ex parte WOO JAN.
• Decision Date: 22 January 1916
• Court: U.S. District Court — Eastern District of Kentucky

228 F. 927

Ex parte WOO JAN.

United States District Court, E.D. Kentucky.

January 22, 1916

Thomas D. Slattery, of Covington, Ky., for the United States.

Proctor K. Malin, of Ashland, Ky., and Sims, Welch & Goodman, of Chicago, Ill., for defendant.

COCHRAN District Judge.

This is an application by Woo Jan, a Chinaman, for a writ of habeas corpus and discharge thereon from the custody of Thomas Thomas, an immigrant inspector of the United States, who holds him under a warrant issued by the Secretary of Labor. That officer claimed the right to issue it by virtue of the act of February 20, 1907. The warrant charges that Woo Jan is an alien; that he landed at the port of San Francisco, Cal May 2, 1913; and that he has been found in the United States in violation of that act, in that he has been found therein in violation of the Chinese Exclusion Laws, and is therefore subject to deportation under the provisions of section 21 of that act.

The applicant denies that he is in this country in violation of the Chinese Exclusion Laws, and in support of this contention states these facts about himself in the petition filed by him on which he obtained the writ: He is 57 years old, was born in China, and has been a merchant domiciled in the United States since 1877. Since 1907 he has been a partner in the firm of Lick Sang Tong at San Francisco, which has a paid-in capital stock of $16,000 and does a yearly business of $30,000, and for many years he has owned and directed a mercantile business in the city of Ashland in this district. On February 15, 1894, he registered as a Chinese merchant at the office of the Collector of Internal Revenue at Lexington Ky., and was given registration certificate No. 43202, which he still has. Since his residence in the United States he has thrice returned to China, and on each occasion his status as such merchant was investigated by the United States authorities, and such status was thereby established. On the last occasion, to wit, January 29, 1912, he applied at the port of San Francisco for a pre-investigation of his status preparatory to departing for China on a temporary visit. Such investigation was had, and on February 28, 1912, the Chinese inspector held that he was legally in the United States and was and had been a merchant for more than a year. Thereupon there was issued to him a returning merchant's certificate, entitling him, on presentation on his return, to enter the United States at the port from which he departed. On March 12, 1912, he departed for China, and remained upon a temporary visit until his return May 2, 1913. On that date he was admitted by the immigration and customs officers of the United States at San Francisco, together with his wife, and he has been in the United States continuously since then, and engaged in the conduct and prosecution of his business as a merchant.

But though the applicant thus claims that he is not in this country in violation of the Chinese Exclusion Laws, he does not base his right to a discharge from the custody complained of on this ground. He bases it on the ground that the Immigrant Department-- a part of the Executive Department of the government-- has no authority to take him in custody upon the charge that he is here in violation thereof, and, if on investigation it determines that he is, to deport him. He claims that the Judicial Department alone has such authority. And so it is that in his petition he challenges the existence of such authority in the Immigration Department, and claims that because of the want thereof he should be discharged from its custody.

The sole question, then, which it presents for decision, is whether the Immigration Department is authorized to inquire into the matter whether the applicant, or any other Chinaman, is in this country in violation of the Chinese Exclusion Laws, and, if it finds that he is, to deport him because thereof. The sole basis on which such authority is claimed is the act of February 20, 1907, entitled 'An act to regulate the immigration of aliens into the United States,' and more particularly section 21 of that act. So the question for decision is narrowed to this; i.e., whether section 21 of that act confers such authority on that department. To decide it correctly, it should be approached from a general survey of the federal legislation on the subject of the immigration of aliens, of the act of February 20, 1907, and of section 21 thereof.

There are two lines of such legislation. The Chinese Exclusion Laws, which relate solely to Chinese aliens, constitute one line. Those laws provide for the exclusion and deportation of Chinese laborers. In case of deportation it is to be had through the judicial department of the government. No further statement as to this line need be made. The other consists of statutes and acts which relate to aliens generally, without regard to their specific alienage. The act of February 20, 1907, under section 21 of which the Immigration Department claims authority to investigate whether the applicant is in the United States in violation of the Chinese Exclusion Laws, constituting the first line of legislation referred to, and to deport him, if it determines that he is, belongs to the second line.

The statutes and acts constituting this line may be found referred to in the margin to the case of Lapina v. Williams, 232 U.S. 77, 86, 34 Sup.Ct. 196, 58 L.Ed. 515. Without copying this reference here, I will proceed as if it were copied. Mr. Justice Pitney in that case said that the acts of March 3, 1903 (32 Stat. 1213, c. 1012), and February 20, 1907, were 'revisions or compilations (with some modifications) of previous acts pertaining to the same general subject-matter. ' Possibly it would be truer to say that the act of March 3, 1903, was a revision and compilation of such acts previous thereto, and that the act of February 20, 1907, was a revision thereof. In the case of Lewis v. Frick, 233 U.S. 289, 296, 34 Sup.Ct. 488, 58 L.Ed. 967, he said that 'the material provisions of the 1907 act were taken' from the act of 1903. The latter act of the two, by section 43 thereof, expressly repeals the earlier one, except section 34 thereof (Comp. St. 1913, Sec. 3391), prohibiting the sale of liquors within the limits of the Capitol Building of the United States-- a strange provision to be found in an Immigration Act. The last act referred to, to wit, that of March 26, 1910, consists merely of amendments to sections 2 and 3 of the act of February 20, 1907 (Comp. St. 1913, Sec. 4247). Possibly the act of February 20, 1907, as amended by that of March 26, 1910, is all of this line now in force.

The provisions of the Revised Statutes, the first of the statutes and acts referred to, related solely to the subjects of China, Japan, or of any other Oriental country, known as coolies, and the first four sections of the act of March 3, 1875 (18 Stat. 477, c. 141 (Comp. St. 1913, Secs. 4348-4350)), were amendatory thereof. These provisions and those sections may be set aside as not constituting a part of that line, and it be limited to the fifth section of that act and the other acts referred to. I know of no reason why it should be thought that the fifth section of the act of March 3, 1875, or any of the acts of August 3, 1882 (22 Stat. 214, c. 376), February 26, 1885 (23 Stat. 332, c. 164), February 23, 1887 (24 Stat. 414, c. 220), and March 3, 1891, did not relate to all aliens alike, without regard to their specific alienage, and therefore did not take in Chinese aliens. In the case of U.S. v. Johnson (C.C.) 7 Fed. 453, it was held that section 5 of the act of March 3, 1875, applied to all aliens, Oriental and others.

A clause in section 1 of the act of March 3, 1891, may be thought to have excluded Chinese aliens from its operations, but I do not think it did. That section enumerates certain classes of aliens who are thereby excluded from admission into the United States, and it provides that they shall be so excluded 'in accordance with existing acts regulating immigration other than those concerning Chinese laborers'; i.e., the Chinese Exclusion Laws, constituting the first line of legislation hereinbefore referred to. But this clause does not mean that Chinese, coming within the classes of aliens thus enumerated, are not thereby excluded, but only that they, as well as all other aliens coming within those classes, shall be excluded 'in accordance with (i.e., in the manner provided in) the existing laws regulating immigration other than those concerning Chinese laborers.' It could hardly have been intended that Chinese not laborers, and hence not excluded by the Chinese Exclusion Laws, coming within such classes, were not thereby excluded. The act of March 3, 1893 (27 Stat. 569, c. 206), however, did not relate to Chinese aliens. This was by virtue of the express provision of section 10 thereof, which provided that that act should 'not apply to Chinese persons.' This act is of a subordinate character, as a perusal of its provisions will disclose, and the statement in its title, that it was an 'act to facilitate' the enforcement of the immigration and contract labor laws of the United States, so indicates. Possibly reflection will bring to mind some special reason for excluding Chinese persons from this particular act which would not operate to cause them to be excluded from other acts of this line of a more fundamental character.

The act of March 3, 1903, and that of February 20, 1907, amended by the act of March 26, 1910, under which the warrant in question issued, relate to all aliens alike, without regard to their specific alienage, and hence to Chinese aliens. Each, however, contains this provision, to wit:

'That all acts and parts of acts inconsistent with

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