Under the Act of July 6, 1884, c. 220, 23 Stat. 116, construed
in connection with the treaty with China of November 17, 1880, 22
Stat. 826, the wives and minor children of Chinese merchants
domiciled in this country, may enter the United States without
certificates.
Distinct appeals were taken direct to this Court from the
judgment of the District Court of the United States for the
District of Washington, Northern Division, in the case of the above
defendant in error, Gue Lim, and from the judgment of the Western
Division of that court in the cases of Ah Tong, Yee Yuen, and Ah
Quong, under the fifth clause of the fifth section of the act
creating the circuit court of appeals, 26 Stat. 826, 828, because
the cases involve, among other questions, the construction of the
treaty between the United States and China, entered into in 1880,
22 Stat. 826, article second, as affected by the third article of
the treaty of December 8, 1894, 28 Stat. 1210. The various appeals
were heard here as one case.
The facts in regard to Gue Lim were agreed upon in the court
below, and it appears therefrom that she is the lawful wife of Fook
Kee, a Chinese merchant engaged in buying and selling merchandise
in the City of Seattle and State of Washington, under the firm name
of Fook Kee & Company. He was not engaged in the performance of
any manual labor, except such as was necessary in the conduct of
his business as such merchant, for over one year next preceding the
date of his last departure from the United States, which was in
April, 1896, and was in all respects a Chinese merchant lawfully
domiciled in the United States. He arrived at the port of Tacoma,
Washington, from China accompanied by his wife, this being her
first arrival in the United States, and the collector of
Page 176 U. S. 460
customs, acting under general instructions from the Secretary of
the Treasury, allowed her to land on the ___ day of May, 1897,
without the production of the certificate mentioned in section
sixth of the Act of July 5, 1884, 23 Stat. 115, c. 220. Complaint
was subsequently made to the district court that she was a Chinese
laborer, and was found unlawfully in the United States, in the
County of King, in the District of Washington, on the second day of
October, 1897, without having been registered as a Chinese laborer,
and without having in her possession a certificate of registration
as such laborer, and without having any other legal right or
authority to be and remain in the United States.
A warrant was issued by the district court, upon which she was
arrested, and after hearing evidence on behalf of the plaintiff and
defendant, the court decided (83 F. 136) that she was not a Chinese
laborer, but the wife of a Chinese merchant lawfully domiciled and
doing business as a merchant, and was not excluded by the laws of
the United States from coming to or remaining in the United States,
and she was therefore discharged from custody and the cause
dismissed.
The other defendants in error had been admitted by the collector
of customs at Port Townsend, and were thereafter adjudged by the
United States commissioner, upon complaint made before him, to be
Chinese laborers unlawfully in the United States, and the
commissioner thereupon ordered them to be deported to China. They
appealed from such decision, and the United States District Court
for the District of Washington, Western Division, after hearing the
evidence, decided that the defendants were minor children of
Chinese merchants, and that they were lawfully entitled to be and
remain in the United States.
The facts were agreed upon in the court below, and they are
stated in the record as follows:
(1) The defendants were born in China of parents lawfully
married, and had resided in that country up to the time they came
to the United States to live with their respective fathers, and
were still minors under the age of fifteen years.
(2) The fathers of these boys were, and for a long time
prior
Page 176 U. S. 461
to the coming of the boys to this country, had been,
bona
fide Chinese merchants, lawfully residing and doing business
in the City of Walla Walla, in the State of Washington, and had
sent for their sons to come from China to live with them in Walla
Walla, where they were residing with their fathers when arrested by
a United States immigration officer.
(3) The boys had never procured any certificate under section
sixth of the Act of July 5, 1884,
supra, but relied
entirely upon the status of their fathers as merchants here to
entitled them to come to this country, and upon that claim had been
admitted by the collector of customs at Port Townsend.
A judgment discharging the defendants having been entered, the
United States appealed to this Court.
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The question here arising in regard to the correctness of the
decision of the district court in the case of the married woman
depends for its solution upon the construction to be given to the
sixth section of the Act of Congress of 1884, 23 Stat. 115, c. 220,
which is set forth in the margin. [
Footnote 1]
Page 176 U. S. 462
That section must be construed in connection with the treaty
concluded between this country and China in November, 1880. 22
Stat. 826.
It is contended on the part of counsel for the government that,
by the subsequent treaty of March, 1894, 28 Stat. 1210, the two
governments have agreed that the requirements of a certificate as
provided for in the sixth section of the act of Congress shall
apply to all permitted Chinese subjects who must without exception
produce such certificates. Article two of the treaty of 1880 and
article three of the treaty of 1894 are set out in the margin.
[
Footnote 2]
Page 176 U. S. 463
We do not think the treaty of 1894 alters the result flowing
from the treaty of 1880 and the act of 1884. The question is
whether, under the act of 1884, construed in connection with the
treaty of 1880, the wife of a Chinese merchant, domiciled in this
country, may enter the United States without a certificate because
she is the wife of such merchant.
Although the third article of the treaty of 1894 does speak of
certificates for Chinese subjects therein described, who already
enjoy the right to enter the country, the question recurs whether
the certificate of the husband who himself enjoys the right is not
enough for the wife, the fact being proved or admitted that she is
such wife. Possibly the result of the treaty of 1894 may be held to
be, instead of simply prohibiting the entrance of Chinese laborers,
to restrict the right of entry to those classes who are specially
named in the third article of the treaty. But the question would
still remain whether the wives of the members of the classes
privileged to enter were not entitled themselves to enter by reason
of the right of the husband and without the certificate mentioned
in the act of 1884.
There has been some difference of opinion among the lower courts
as to the true construction to be given to the treaty and the act
of Congress. The judges in some cases have taken the view that the
wife and minor children of a Chinese merchant, who is himself
entitled under the second article of the treaty of 1880 and section
six of the act of 1884 to come within and dwell in the United
States were entitled to come into the country with him or after him
as such wife and children without the certificate prescribed in
that section. Other judges
Page 176 U. S. 464
have held that they were not entitled to enter the country
without the production of the certificate mentioned in the act.
Those cases holding the right of the wife to enter without a
certificate are
In re Chung Toy Ho, 42 F. 398, in the
Circuit Court, District of Oregon, May 1890, in which case the
opinion was delivered by Judge Deady;
In re Lee Yee Sing,
85 F. 635, decided in 1898 in the District Court for the State of
Washington; also in this case,
United States v. Gue Lim,
83 F. 136, District Court of Washington, 1897.
Those adverse to the doctrine are
In re Ah Quan, 21 F.
182, 186, decided in 1884 in the Circuit Court, District of
California;
In re Ah Moy, 21 F. 785, in the same court,
September, 1884;
In re Wo Tai Li, 48 F. 668, in the
District Court, Northern District of California, August, 1888;
In re Lum Lin Ying, 59 F. 682, District Court of Oregon,
February, 1894;
In re Li Foon, 80 F. 881, Circuit Court,
Southern District of New York, 1897.
Some of the latter cases do not involve the exact point now
before the court, but they are in the direction stated.
It is not necessary to review these cases in detail. It is
sufficient to say that we agree with the reasoning contained in the
opinion delivered by Judge Deady.
In re Chung Toy Ho, 42
F. 398. In our judgment, the wife in this case was entitled to come
into the country without the certificate mentioned in the act of
1884.
The act of 1882, of which that of 1884 was an amendment, was
passed, as is stated in its title, "to execute certain treaty
stipulations relating to Chinese," and therefore we must assume
that the body of the act has that purpose.
This Court has already sustained the power of Congress to
provide for excluding or expelling Chinese, even in contravention
of a treaty; also the power to entrust the final determination of
the facts upon which the individual is to be expelled, to an
executive officer.
Fong Yue Ting v. United States,
149 U. S. 698;
Wong Wing v. United States, 163 U.
S. 228. But it is not the power of Congress over the
subject with which we are now dealing. The question is what did
Congress
Page 176 U. S. 465
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 two of the treaty, Chinese subjects proceeding
to the United States, either as teachers, students, merchants or
from curiosity, together with their body and household servants,
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 exemptions which are accorded to the citizens and
subjects of the most favored nation." It was for the avowed purpose
of carrying these treaty stipulations into effect that the act of
1882, 22 Stat. 58, and the amended act of 1884, 23 Stat. 115, were
passed.
It 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. As was stated by MR. JUSTICE HARLAN in delivering the
opinion of the Court in
Chew Heong v. United States,
112 U. S. 536:
"The Court should be slow to assume that Congress intended to
violate the stipulations of a treaty so recently made with the
government of another country. . . . Aside from the duty imposed by
the Constitution to respect treaty stipulations when they become
the subject of judicial proceedings, the court cannot be unmindful
of the fact that the honor of the government and the people of the
United States is involved in every inquiry whether rights secured
by such stipulations shall be recognized and protected. And it
would be wanting in proper respect for the intelligence and
patriotism of a coordinate department of the government were it to
doubt for a moment that these considerations were present in the
minds of its members when the legislation in question was
enacted."
We ought, therefore, to so consider the act, if it can
reasonably be done, as to further the execution, and not to
violate, the provisions of the treaty.
There is nothing in the act of 1884, which in terms enumerates
and provides for the admission of particular classes of
Page 176 U. S. 466
persons. It speaks in the sixth section of those who may be
entitled under the treaty or under the act to come within the
United States, but the act does not assume to enlarge the number or
character of the classes specially named in the treaty as entitled
to admission. It is plain that, in this case, the woman could not
obtain the certificate as a member of any of those specially
enumerated classes. She is neither an official, a teacher, a
student, a merchant, nor a traveler for curiosity or pleasure. She
is simply the wife of a merchant, who is himself a member of one of
the classes mentioned in the treaty as entitled to admission. And
yet 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. If not, then they
would be entitled to admission because they were such wives,
although not in terms mentioned in the treaty.
Does the sixth section mean that, in such case, the wife must
obtain the certificate therein provided for? We think not. Although
the section provides that every Chinese person, other than a
laborer, who may be entitled by the treaty or by the act to enter
the United States must have a certificate, the contents whereof are
therein stated, yet when we come to look at the particulars which
it directs shall be set forth in the certificate, we see that the
section was not drawn with the view of embracing the case of one
who claims the right of admission simply as the wife of a person
entitled to enter and remain in this country. She may have had no
former, and may have no present, occupation or profession within
the meaning of the section, and, of course, in that case, it cannot
be stated when and where and how long it has been pursued.
The section assumes that the applicant for a certificate has
some occupation or profession which has been theretofore pursued at
some place, which is not the case here.
Various other provisions in the section render it plain to our
minds that it was never intended to extend to the wives of persons
who were themselves entitled to entry. A certificate that should
only state that the person therein identified was the wife of a
member of the admitted class, and had no
Page 176 U. S. 467
occupation or profession, it seems to us would not be a
compliance with the section, and if not, then it would not be
possible to comply with its provisions in this case, and the
consequence would be that (if a certificate ware necessary under
the sixth section) the statute would exact as a condition of
entrance into the country that which the person could not perform,
although otherwise entitled to enter.
While the literal construction of the section would require a
certificate, as therein stated, from every Chinese person other
than a laborer who should come into the country, yet such a
construction leads to what we think an absurd result, for it
requires a certificate for a wife of a merchant, among others, in
regard to whom it would be impossible to give the particulars which
the statute requires shall be stated in such certificate.
"Nothing is better settled," says the present CHIEF JUSTICE in
Lau Ow Bew v. United States, 144 U. S.
47,
144 U. S.
59,
"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 conclusion."
The purpose of the sixth section, requiring the certificate, was
not to prevent the persons named in the second article of the
treaty from coming into the country, but to prevent Chinese
laborers from entering under the guise of being one of the classes
permitted by the treaty. It is the coming of Chinese laborers that
the act is aimed against.
It was said in the opinion in the
Lau Ow Bew case, in
speaking of the provision that the sole evidence permissible should
be the certificate:
"This rule of evidence was evidently prescribed by the amendment
as a means of effectually preventing the violation or evasion of
the prohibition against the coming of Chinese laborers. It was
designed as a safeguard to prevent the unlawful entry of such
laborers under the pretense that they belong to the merchant class
or to some other of the admitted classes."
It was also held in that case that although the literal wording
of the statute of 1884, section 6, would require a certificate in
the case of a merchant already domiciled in the United States and
who had left the country for temporary purposes,
Page 176 U. S. 468
animo revertendi, yet its true and proper construction
did not include his case, and the general terms used in the act
were limited to those persons to whom Congress manifestly intended
to apply them, which would be those who were about to come to the
United States for the first time, and not to those Chinese
merchants already domiciled in the United States who had gone to
China for temporary purposes only, with the intention of returning.
The case of
Wan Shing v. United States, 140 U.
S. 424, was referred to, and attention called to the
fact that the appellant therein was not a merchant, but a laborer
who had acquired no commercial domicil in this country, and was
clearly within the exception requiring him to procure and produce
the certificate specified in the act. The ruling was approved, and
the differences in the two cases pointed out by the Chief
Justice.
To hold that a certificate is required in this case is to decide
that the woman cannot come into this country at all, for it is not
possible for her to comply with the act, because she cannot, in any
event, procure the certificate even by returning to China. She must
come in as the wife of her domiciled husband or not at all. The act
was never meant to accomplish the result of permanently excluding
the wife under the circumstances of this case, and 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 true
construction of the treaty and the 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. All the reasons which favor the
construction of the statute as exempting the wife from the
necessity of procuring a certificate apply with equal force to the
case of minor children of a member or members of the admitted
classes. They come in by reason of their relationship to the
father, and whether they accompany or follow him, a certificate is
not necessary in either case. When the fact is established to the
satisfaction of the authorities that the person claiming to enter,
either as wife or minor child, is in fact the wife or minor child
of one of the members of a class mentioned
Page 176 U. S. 469
in the treaty as entitled to enter, then that person is entitled
to admission without the certificate.
The views lead to the affirmance of the judgments, and they are
accordingly
Affirmed.
[
Footnote 1]
"SEC. 6. That in order to the faithful execution 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 certificate issued by such government,
which certificate shall be in the English language, and shall show
such permission, with the name of the permitted 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. If 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. . . . The certificate
provided for in this act and the identity of the person named
therein shall, before such person goes on board any vessel to
proceed to the United States, be vised by the endorsement of the
diplomatic representatives of the United States in the foreign
country from which said certificate issues, or of the consular
representative of the United States at the port or place from which
the person named in the certificate is about to depart, and such
diplomatic representative or consular representative whose
indorsement is so required is hereby empowered, and it shall be his
duty, before endorsing such certificate as aforesaid, to examine
into the truth of the statements set forth in said certificate, and
if he shall find upon examination that said or any of the
statements therein contained are untrue, it shall be his duty to
refuse to endorse the same. Such certificate, vised as aforesaid,
shall be
prima facie evidence of the facts set forth
therein, and shall be produced to the collector of customs of the
port in the district in the United States at which the person named
therein shall arrive, and afterwards produced to the proper
authorities of the United States whenever lawfully demanded, and
shall 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; but said certificate may be controverted and the facts
therein stated disproved by the United States authorities."
[
Footnote 2]
"
Treaty of 1880"
"
Article II"
Chinese subjects, whether proceeding to the United States as
teachers, students, merchants, 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.
"
Treaty of 1894"
"
Article III"
"The provisions of this convention shall not affect the right at
present enjoyed of Chinese subjects, being officials, teachers,
students, merchants, or travelers for curiosity or pleasure, but
not laborers, of coming to the United States and residing therein.
To entitle such Chinese subjects 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."