Where the act originally purports to be done in the name and by
the authority of the state, a defect in that authority may be cured
by the subsequent adoption of the act.
The deportation of a Chinaman from the Philippine Islands by the
Governor General prior to an act of the legislature authorizing
such deportation is to be considered as having been ordered in
pursuance of such statute.
Sovereign states have inherent power to deport aliens, and
Congress is not deprived of this power by the Constitution of the
United States.
The ground on which the power to deport aliens rests
necessitates that it may have to be exercised in a summary manner
by executive officers.
Congress not being prevented by the Constitution from
deporting
Page 228 U. S. 550
aliens, the Philippine government cannot be prevented from so
doing by the Bill of Rights incorporated in the Act of July 1,
1902.
The deportation of aliens in this case by the Philippine
government was not a deprivation of liberty without due process of
law.
The local government of the Philippine Islands has all civil and
judicial power necessary to govern the Islands, and this includes
the power to deport aliens.
The extension by Congress of the Chinese Exclusion and
Immigration Laws to the Philippine Islands does not prevent the
government of the Islands passing an act removing aliens
therefrom.
The English rule is that an act of state is not cognizable in
any municipal court. It is within the power of the Legislature of
the Philippine Islands to declare an act of the executive which is
within its power to authorize to be not subject to question or
review.
A statute which protects the executive protects the subordinates
as well as the chief executive.
Quaere whether the Governor of the Philippine Islands
has authority, by virtue of his office alone, to deport aliens, or
immunity from action for a deportation made in good faith, whether
he had the power or not.
Quaere whether, historically speaking, prohibition was
the proper remedy; but, in this case, this Court should not
interfere with the local practice in a matter relating to the
administration of local statutes except for good cause shown.
The act of the Philippine Legislature passed April 19, 1910,
ratifying the action of the Governor General in ordering the
deportation of plaintiffs, Chinamen, and declaring it to have been
an exercise of authority vested in him by law in all respects legal
and not subject to question or review, was within the power of the
legislature, and took from the court, in which an action had been
brought to enjoin the deportation, jurisdiction to try the case,
and the judgment granting a writ of prohibition is affirmed.
The facts, which involve the power of the Philippine government
to deport aliens, are stated in the opinion.
Page 228 U. S. 554
MR. JUSTICE HOLMES delivered the opinion of the Court.
The three plaintiffs in error severally sued the defendants in
error, alleging that Mr. Forbes was the Governor
Page 228 U. S. 555
General of the Philippines, Trowbridge Chief of the Secret
Service of Manila, and Harding Chief of Police of the same; that
the plaintiff was a Chinese person, lawfully resident in the
Philippines, and that the defendants forcibly deported the
plaintiff to China and forcibly prevented his return for some
months; that the plaintiff returned on March 29, 1910, and that the
defendants threatened and were trying to expel the plaintiff again,
Trowbridge and Harding acting throughout under the order of the
defendant Forbes. There was a prayer for an injunction and damages.
The defendants demurred, but the demurrer was overruled and a
temporary injunction granted. Thereupon Forbes, Harding, and
Trowbridge sued for writs of prohibition against the judge and the
respective plaintiffs, alleging that the expulsion was carried out
in the public interest and at the request of the proper
representative of the Chinese government in the Philippines, and
was immediately reported to the Secretary of War. The complaints
were demurred to, but the supreme court overruled the demurrers,
granted the prohibition, and ordered the actions dismissed. The
judge, having declined to join in the applications for writs of
error, was made a respondent, and the cases are here on the ground
that the plaintiffs have been deprived of liberty without due
process of law. Act of Congress, July 1, 1902, c. 1369, § 5, 32
Stat. 691, 692.
The purpose of the first suits, of course, was to make the
Governor General personally answerable in damages for acts done by
him by color of his office and in pursuance of what he deemed to be
his duty, as well as to prevent his exercising similar power in the
future. This sufficiently appears by the declarations, which
suggest, and do not exclude, official action, and is alleged in the
complaints for prohibition. On April 19, 1910, in less than three
weeks after the original suits were brought, the Philippine
Legislature passed an act
Page 228 U. S. 556
which, reciting that the Governor General had authorized the
deportation "in the exercise of authority vested in him by law,"
enacted that his action was "approved and ratified and confirmed,
and in all respects declared legal, and not subject to question or
review." So that, if ratification by that body can dispose of the
matter, no court has authority to entertain the suits.
The first doubt that naturally would occur is whether, if a
right of action had vested previously, it could be taken away by
such a statute. But it generally is recognized that, in cases like
the present, where the act originally purports to be done in the
name and by the authority of the state, a defect in that authority
may be cured by the subsequent adoption of the act. The person who
has assumed to represent the will and person of the superior power
is given the benefit of the representation if it turns out that his
assumption was correct.
O'Reilly v. Brooke, 209 U. S.
45,
209 U. S. 52;
United States v. Heinszen, 206 U.
S. 370,
206 U. S. 382;
The Paquete Habana, 189 U. S. 453,
189 U. S. 465;
Phillips v. Eyre, L.R. 6, Q.B. 1, 23;
The Secretary of
State v. Kamachee Boye Sahaba, 13 Moore, P.C. 22, 86.
Compare West Side Belt R. Co. v. Pittsburgh Construction
Co., 219 U. S. 92;
Dunbar v. Boston & Providence R. Co., 181 Mass. 383,
385, 386.
Therefore, the deportation is to be considered as having been
ordered by the Governor General in pursuance of a statute of the
Philippine Legislature directing it under their combined powers,
and it is unnecessary to consider whether he had authority, by
virtue of his office alone, as declared by the statute, or whether,
if he had not, he had immunity from suit for such an official act
done in good faith. The former matter now is regulated by a later
statute providing for a hearing, etc. No. 2113. February 1, 1912.
On the question thus narrowed, the preliminaries are plain. It is
admitted that sovereign states have inherent power to deport
aliens, and seemingly that
Page 228 U. S. 557
Congress is not deprived of this power by the Constitution of
the United States.
Fong Yue Ting v. United States,
149 U. S. 698,
149 U. S.
707-728;
Wong Wing v. United States,
163 U. S. 228,
163 U. S. 231;
Fok Yung Yo v. United States, 185 U.
S. 296,
185 U. S. 302;
Turner v. Williams, 194 U. S. 279,
194 U. S.
289-290. Furthermore, the very ground of the power in
the necessities of public welfare shows that it may have to be
exercised in a summary way through executive officers.
Fong Yue
Ting v. United States, supra; United States v. Ju Toy,
198 U. S. 253,
198 U. S. 263;
Moyer v. Peabody, 212 U. S. 78,
212 U. S. 84-85.
So that the question is narrowed further to the inquiry whether the
Philippine government cannot do what unquestionably Congress
might.
As Congress is not prevented by the Constitution, the Philippine
government cannot be prevented by the Philippine Bill of Rights
alone. Act of July 1, 1902, c. 1369, § 5, 32 Stat. 691, 692.
Deporting the plaintiffs was not depriving them of liberty without
due process of law unless, on other grounds, the local government
was acting beyond its powers. But the local government has all
civil and judicial power necessary to govern the Islands. Act of
March 2, 1901, c. 803, 31 Stat. 895, 910, Act of July 1, 1902, c.
1369, § 1, 32 Stat. 691. The forms are different, but, as in
Hawaii, the proximate source of private rights is local, whether
they spring by inheritance from Spain or are created by Philippine
legislation.
See Kawananakoa v. Polyblank, 205 U.
S. 349,
205 U. S. 354;
Perez v. Fernandez, 202 U. S. 80,
202 U. S. 91-92.
It would be strange if a government so remote should be held bound
to wait for the action of Congress in a matter that might touch its
life unless dealt with at once and on the spot. On the contrary, we
are of opinion that it had the power as an incident of the
self-determination, however limited, given to it by the United
States.
By § 86 of the Act of July 1, 1902, all laws passed by the
Philippine government are to be reported to Congress,
Page 228 U. S. 558
which reserves power to annul them. It is worthy of mention that
the law under consideration was reported to Congress, and has not
been annulled. The extension of the Chinese exclusion and
immigration laws to the Philippine Islands has no bearing on the
matter. The right to remain, for instance, under the Act of April
29, 1902, c. 641, § 4, 32 Stat. 176, does not prevail over a
removal as an act of state.
It is held in England that an act of state is a matter not
cognizable in any municipal court.
Musgrave v. Pulido, 5
App.Cas. 103, 108. And that was the purport of the Philippine act
declaring the deportation not subject to question or review. As the
Bill of Rights did not stand in the way, and the implied powers of
the government sanctioned by Congress permitted it, there is no
reason why the statute should not have full effect. It protected
the subordinates as well as the Governor General, and took
jurisdiction from the court that attempted to try the case.
Whether prohibition is technically the proper remedy,
historically speaking, we need not inquire. On such a matter, we
should not interfere with local practice except for good cause
shown. In substance, the decision of the Supreme Court was
right.
Judgment affirmed.
