Karnuth v. United States Arbro Cook

Citation279 U.S. 231,73 L.Ed. 677,49 S.Ct. 274
Decision Date08 April 1929
Docket NumberNo. 198,198
PartiesKARNUTH, United States Director of Immigration, et al. v. UNITED STATES, on Petition of ARBRO, for COOK et al
CourtUnited States Supreme Court

Mr. Wm. D. Mitchell, Atty. Gen., for petitioners.

[Argument of Counsel from page 232 intentionally omitted] Mr. Preston M. Albro, of Buffalo, N. Y., for respondents.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This case arose under section 3 of the Immigration Act of 1924, c. 190, 43 Stat. 153, 154, U. S. Code, title 8, § 203 et seq. (8 USCA § 203 et seq.), which provides: 'When used in this Act the term 'immigrant' means any alien departing from any place outside the United States destined for the United States, except * * * (2) an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure. * * *' The complete section, together with other pertinent provisions of the act, are copied in the margin. 1

Neither respondent is a native of Canada. Mary Cook, is a British subject, born in Scotland, who came to Canada in May, 1924, She is a spinner by occupation, and resides at Niagara Falls, Ontario. Antonio Danelon is a native of Italy, who came to Canada in 1923. He also resides at Niagara Falls, Ontario. He alleges that he became a Canadian citizen by reason of his father's naturalization. Both sought admission to the United States on December 1, 1927, as nonimmigrants, under the excepting clause (2) above quoted. Prior thereto, Mary Cook had crossed from Canada to the United States daily for a period of three weeks to engage in work at which she was employed. On the occasion in question, she was out of employment, but desired admission to look for work. Danelon had been at work in the United States for more than a year, crossing daily by the use of an identification card. He sought admission to resume work. Both were denied admission by the immigration authorities, on the ground that they were quota immigrants within the meaning of the act, and did not come within the excepting clause. Section 3(2). The following departmental regulation, adopted under section 24 of the act (8 USCA § 222) has been in force since September, 1925: 'Temporary visits * * * for the purpose of performing labor for hire are not considered to be within the purview of section 3(2) of the act.' It is not disputed that both aliens were property excluded if the validity of this regulation is established.

In a habeas corpus proceeding, brought in behalf of the two aliens, the federal District Court for the Western District of New York sustained the action of the immigration officials and dismissed the writ. On apppeal, this judgment was reversed. The Circuit Court of Appeals held that an alien crossing from Canada to the United States daily to labor for hire was not an immigrant but a visitor for business within the meaning of section 3(2) of the act. U. S. on Petition of Albro, ex rel. Cook v. Karnuth, 24 F.(2d) 649. In reaching that conclusion the court seemed of opinion that, if the statute was so construed as to exclude the aliens, it would be in conflict with article 3 of the Jay Treaty of 1794, 8 Stat. 116, 117, a result, of course, to be avoided if reasonably it could be done. Lem Moon Sing v. United States, 158 U. S. 538, 549, 15 S. Ct. 967, 39 L. Ed. 1082.

We granted the writ of certiorari because of the far-reaching importance of the question. The decision below affects not only aliens crossing daily from Canada to labor in the United States, but, if followed, will extend to include those entering the United States for the same purpose from all countries, including Canada, who intend to remain for any period of time embraced within the meaning of the word 'temporary.' By the immigration rules, this time is defined as a reasonable fixed period to be determined by the examining officer, which may be extended from time to time, though not to exceed one year altogether from the date of original entry. Thus, if the view of the court below prevail, it will result that aliens-not native of Canada or any other American country named in section 4(c)-whose entry as immigrants is precluded, may land as temporary visitors and remain at work, in the United States for weeks or months at a time.

First. The pertinent provision of article 3 of the Jay Treaty follows:

'It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson's bay Company only excepted) and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce with each other. * * *'

The position of the government is that (1) there is no conflict between the treaty and the statute, but (2) in any event, the treaty provision relied on was abrogated by the War of 1812. We pass at once to a consideration of the second contention, since, if that be sustained, the first becomes immaterial and the statute open to construction unembarrassed by the treaty.

The effect of war upon treaties is a subject in respect of which there are widely divergent opinions. The doctrine sometimes asserted, especially by the older writers, that war ipso facto annuls treaties of every kind between the warring nations, is repudiated by the great weight of modern authority; and the view now commonly accepted is that 'whether the stipulations of a treaty are annulled by war depends upon their intrinsic character.' 5 Moore's Digest of International Law, § 779, p. 383. But as to precisely what treaties fall and what survive, under this designation, there is lack of accord. The authorities, as well as the practice of nations, present a great contrariety of views. The law of the subject is still in the marking, and, in attempting to formulate principles at all approaching generality, courts must proceed with a good deal of caution. But there seems to be fairly common agreement that at least the following treaty obligations remain in force: Stipulations in respect of what shall be done in a state of war; treaties of cession, boundary, and the like provisions giving the right to citizens or subjects of one of the high contracting powers to continue to hold and transmit land in the territory of the other; and, generally, provisions which represent completed acts. On the other hand, treaties of amity, of alliance, and the like, having a political character, the object of which 'is to promote relations of harmony between nation and nation,' are generally regarded as belonging to the class of treaty stipulations that are absolutely annulled by war. Id., p. 385, quoting Calvo, Droit Int. (4th Ed.) IV. 65, § 1931.

In Society, etc., v. New Haven, 8 Wheat. 464, 5 L. Ed. 662, a case involving the right of a British corporation to continue to hold lands in Vermont, this court was called upon to determine the effect of the War of 1812 upon the ninth article of the Jay Treaty which provides:

'That British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.' 8 Stat. 116, 122.

It was held that the title to the property of the society was protected by the sixth article of the Treaty of 1783, 8 Stat. 80, 83, was confirmed by the words of article 9 above quoted, and was not affected by the War of 1812. The applicable rule was stated (8 Wheat. p. 494) in the following words:

'But we are not inclined to admit the doctrine urged at the bar, that treaties become extinguished, ipso facto, by war between the two governments, unless they should be revived by an express or implied renewal on the return of peace. Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms, in relation to this subject, we are satisfied, that the doctrine contended for is not universally true. There may be treaties of such a nature, as to their object and import, as that war will put an end to them; but where treaties contemplate a permanent arrangement of territorial, and other national rights, or which, in their terms, are meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by the event of war. If such were the law, even the treaty of 1783, so far as it fixed our limits, and acknowledged our independence, would be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning.

'We think, therefore, that treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace.'

The English High Court of Chancery reached the same conclusion in Sutton v. Sutton, 1 Russ. & M. 663, 675:

'The relations, which had subsisted between Great Britain and America, when they formed one empire, led to the introduction of the ninth section of the treaty of 1794, and made it highly reasonable that the subjects of the...

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