United States v. Nakashima

• Decision Date: 17 February 1908
• Docket Number: 1,447.
• Parties: UNITED STATES v. NAKASHIMA.
• Court: U.S. Court of Appeals — Ninth Circuit

160 F. 842

UNITED STATES v. NAKASHIMA.

No. 1,447.

United States Court of Appeals, Ninth Circuit.

February 17, 1908

The appellee, in his petition for a writ of habeas corpus alleged that he is a subject of the Emperor of Japan, but that he is, and has been for four years and more, a resident of the United States, having in May, 1902, come from the empire of Japan to the territory of Hawaii as an immigrant that he resided in that territory for about 1 1/2 years working there as a drayman, and that while there he married that from Hawaii he and his wife went to San Jose, in California, where he established a home for himself and wife, and where he remained working at his trade of bricklayer until November, 1904, when he was called upon to return to Japan to serve in the army, as he was a reserve soldier; that he left his wife in San Jose, went to Japan, served in the army of that empire through the war with Russia, and upon his discharge proceeded to return to his home in San Jose; that on his way he arrived in Honolulu, where he desired to stop en route to visit a brother and sister who resided there; that he has no other home or place of residence than at San Jose; that before departing for Japan, as aforesaid, he procured from the Japanese consul at San Francisco a certificate showing that he was a resident of San Jose, and that his intention was to return there and make his home there. These facts were not denied. In addition thereto an agreed statement of facts was made on the trial had upon the return to the writ, which was in substance as follows: That the appellee arrived at Honolulu on the steamship Kasato Maru, having sailed from Kobe on August 26, 1906; that in compliance with the act of Congress approved March 3, 1903, a manifest of alien passengers was delivered to the United States immigration inspector at Honolulu, which manifest contained the name of the appellee and the statement that he was of Japanese nationality and that he had never before been in the United States; that thereafter the appellee was questioned by an immigration inspector at the port of Honolulu relative to the statements set forth in the manifest, whereupon he stated that his occupation was that of a laborer, and that he had been in San Jose in 1903 and 1904; that thereupon the manifest was amended accordingly; that on September 19, 1906, an examination of the physical and mental condition of the appellee was made by an officer of the United States Marine Hospital service, located at Honolulu, and upon the completion of such examination that officer certified in writing that the appellee was afflicted with a dangerous contagious disease, to wit, trachoma; that at that time there was at the port of Honolulu a duly appointed, qualified, and acting board of special inquiry, consisting of three persons, to which board the certificate of the medical officer was delivered, the board having been called together for the purpose of giving the appellee a hearing; that such hearing was had, and as the result thereof said board determined that the appellee was afflicted with a dangerous contagious disease, and ordered that he be deported to Japan; that on September 20, 1906, the appellee appealed from the decision of the board, and on October 8, 1906, the Secretary of the Department of Commerce and Labor of the United States dismissed the appeal, holding that no appeal was permissible. Upon the hearing on the return to the writ of habeas corpus the court below held that the provisions of Act Cong. March 3, 1903, c. 1012, 32 Stat. 1213, 'An act to regulate the immigration of aliens into the United States,' applied to alien immigrants only, and not to aliens domiciled in the United States who may have temporarily gone abroad and are returning thereto.

Robert W. Breckons, U.S. Atty.

Charles F. Clemons, for appellee.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

GILBERT Circuit Judge (after stating the facts as above).

The question first presented is whether the appellee is of the class of aliens who are to be denied admission into the United States under Act March 3, 1903, c. 1012, 32 Stat.pt. 1, p. 1213, which excludes from admission all aliens who are afflicted with a dangerous contagious disease. That act is amendatory of Act March 3, 1891, c. 551, 26 Stat. 1084 (U.S. Comp. St. 1901, p. 1294), which in its terms is amendatory of prior acts. The act of 1891 had uniformly been held to apply solely to alien immigrants, and not to affect the rights of alien residents. In re Panzara (D.C.) 51 F. 275; In re Martorelli (C.C.) 63 F. 437; In re Maiola (C.C.) 67 F. 114; In re Ota (D.C.) 96 F. 487; Moffitt v. United States, 128 F. 375, 63 C.C.A. 117. In the case last cited this court had occasion to construe section 10 of the act of March 3, 1891, requiring the deportation of all aliens who may unlawfully come into the United States, and in the opinion we said:

'This act clearly relates to immigration, and is leveled only against immigrants, although neither of these words is expressly mentioned in section 10 of the act.'

It is true that the act of March 3, 1891, is in terms directed against all aliens, and does not, in section 2, which defines the classes of aliens to be excluded from admission, employ the word 'immigrant' or 'immigration'; nor does it employ those words in section 9, which imposes a penalty on any person or transportation company bringing to the United States any alien afflicted with a loathsome or dangerous contagious disease.

If the act were unaffected by the prior legislation, of which it is amendatory, there might be ground for saying, from its inclusive language, that it is directed against all aliens coming into the United States; but aliens have always been allowed to reside in the United States and acquire property there, while at the same time maintaining their citizenship in the country from which they came, and their right to return to the United States, after having temporarily left the same with the intention to return, has always been recognized. It is not to be presumed that Congress intended to change the whole trend of its prior legislation in regard to alien residents, construed as that legislation has been by the courts, without expressing that intention in terms so clear as to leave no room for doubt. We find no such change of phraseology as to justify that conclusion. The act of March 3, 1903, is not only amendatory, but it is a revision and collocation of the prior laws. It is true that there is to be found a substitution of the word 'alien' for 'alien immigrant' in sections 12, 13, 17, and 20; but there is no such substitution of words in section 2, which is a substantial reenactment of the corresponding section of the act of 1891, with the exception that it omits the clause 'in accordance with the existing acts regulating immigration other than those concerning Chinese laborers. ' But the omission of that clause does not seem to us of significance as indicating a change of policy, for the act of 1903 contains in itself full legislation on the subject with which it deals, and there was no occasion to refer to existing acts regulating immigration.

The title of the act, while it may not be used to extend or restrain any positive provisions found in the body of the act, may be resorted to in a case of doubt for the purpose of ascertaining its meaning. Old Trinity Church v. United States, 143 U.S. 457, 12 Sup.Ct. 511, 36 L.Ed. 226; Coosaw Mining Co. v. South Carolina, 144 U.S. 550 12 Sup.Ct. 689, 36 L.Ed. 537. The title of the act of March 3, 1903, is 'An act to regulate the immigration of aliens into the United States....