United States v. Ko Sai Cheung

281 F. 988, 1922 U.S. App. LEXIS 2199

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 24, 1922
• Docket: No. 5745
• Status: Published

Opinions

LEWIS, Circuit Judge.

This is an appeal from an order discharging appellee on writ of habeas corpus. At the time the writ issued he was being held for deportation on a warrant issued by the Secretary of Labor. There is no doubt that appellee had been a member of a wholesale mercantile firm in China, that before coming here he obtained a merchant’s certificate under section 6 of the Chinese Exclusion Act (Comp. St § 4293), and that it was regularly issued. It was produced at the trial. By virtue of-it he landed at San Francisco in December, 1917, and within, a month thereafter went to St. Louis, where he was later taken into custody and given a hearing before an immigration inspector on the charge contained in the warrant of arrest, that he had been found within the United States in violation of section 6 of the Chinese Exclusion Act, having fraudulently procured the certificate under that section and having become a laborer since admission. The inspector held that the evidence supported the charge, and it was repeated in the deportation warrant under which he was being held when the writ was sued out.

The question presented to us is, whether a Chinese, a citizen of China, charged with violation of the Chinese Exclusion Act (Comp. St. § 4290 et seq.), can be deported without being given a judicial hearing in accordance with the requirements of that act (Comp. St. § 4313). The Supreme Court, in Woo Jan’s Case, 245 U. S. 552, 38 Sup. Ct. 207, 62 L. Ed. 466, answered the question in the negative. There the proceeding was on executive order and inquiry under the Immigration Act of February 20, 1907 (34 Stat. 898), for violation of the Chinese Exclusion Act, and the court held the executive order to be void. Here executive action was taken against appellee in claimed compliance with the Immigration Act of February 5, 1917 (39 Stat. 874 [Comp. St. 1918, Comp. St. Anm Supp. 1919,_ §§ 959, 960, 4289J4a-42891,4t0, for violation of the Chinese Exclusion Act; and on that it is argued that although the Act of 1907 did not take away the right to a judicial hearing, that of 1917 does—hence the Woo Jan Case does not cpntrol. The argument is this: Both acts provided (section 21 of the Act of 1907 and section 19 of the Act of 1917) that any alien might be deported by executive action who was found in the United States in violation “of any (other) law of the United States,” but that the Act of 1907 only provided (section 43) “that this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent”; whereas the later act, in its thirty-eighth section (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289J413)-added this to the language of the prior act just quoted: “except as provided in section 19 hereof”; and that this amendment of the Immigration Act subjected appellee to the procedure adopted. One might expect on casually reading section 38 of the later act with the amending clause just quoted to find in section 19 language, appropriate for the purpose, expressly repealing some part or parts, or section or sections, of the Chinese Exclusion Act, but no such language can be found. A more careful reading would hardly raise that expectation, for the clause is not apt to that purpose; else it would have run, except in so far as said act is repealed, altered or amended by section 19 hereof. Section 19 does not expressly repeal, alter or amend the Chinese Exclusion Act; so that if the contention is sustained, it must be on the ground that what is found in section 19 repeals, alters or amends the Exclusion Act, to the extent claimed, by implication. If it was the purpose of Congress to repeal all parts of the Chinese Exclusion Act which provided for a judicial hearing, why did it not expressly say so ? That could have been done easily and unmistakably, and in shorter and more simple terms than we find in section 38. Or it could have declared the same thing in clear, direct terms in section 19. But it did neither. And it must have known, as said in the Woo Jan Case, that—

“The remedies are too essentially different to be concurrent. * * * And there can be no doubt of the result if such decision be made. The summary and direct remedy of section 21 will always be used. No Chinese person will be given the formal procedure of the exclusion laws with their safeguards.”

We cannot assume that the language used was selected to create a doubt of the legislative purpose, but rather that the doubt, if any, is engendered from the effort to construe it for the purpose not intended, that is, to withdraw the right to a judicial hearing expressly given by the Exclusion Act. We come to a consideration of section 19 (Act of 1917 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289J4jj])> in the light of familiar and settled rules of construction. Its broad purpose is to vest power in the Secretary of Labor to deport aliens after executive inquiry under the conditions and circumstances named in it. The particular contingency relied upon here is that the power is given when an alien shall have- entered, or shall be found in the United States, “in violation of any other law of the United States”; but the same quoted clause, omitting the word “other,” was used in the same connection in the Act of 1907 passed upon in the Woo Jan Case. The section proceeds at length with a list of prohibited acts on commission of which the power given may be exerted; among others we find these:

“Any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude,” which is a “violation [in'part at least] of any other law of the United States”; “or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude committed at any time after entry,” which likewise is a “violation of any other law of the United States.”

The section specifies other acts which may be committed by a Chinese, as well as by others, subjecting him to deportation by executive procedure, none of which, however, were charged against appellee. Applicable rules of construction to be applied may be found in Lewis’ Sutherland, Statutory Construction (2d Ed.) vol. 1, § 247 et seq. That an implied repeal results from some enactment the terms and necessary operation of which cannot be harmonized with the terms and necessary effect of an earlier act, that repeals by implication are not favored, that it is the duty of the court to so construe the acts, if possible, that both shall be operative, that where there is a difference in the whole purview of two statutes, apparently relating to the same subject, the former is not repealed, that if by a fair and reasonable interpretation acts which are seemingly incompatible or contradictory may be enforced and made to operate in harmony without absurdity, both will be upheld, and the later one will not be regarded as repealing the' others by construction or intendment, that where two acts deal with different subjects the rule is rarely applied, and that it must be presumed that "the Legislature in passing a statute did not intend to interfere with or abrogate any prior law relating to the same matter, where it has not expressly done so, unless the repugnancy between the two is irreconcilable.

It was shown that appellee entered in strict conformity with the Exclusion Act, so the last proviso to section 19 does not help appellant, for the record of “conviction of a crime involving moral turpitude in violation of any other law of the United States” would make a prima facie case against an alien’s right to remain.

Our conclusion is ’ that the two acts can be harmonized’' so as to give effect to both, that a Chinese person may be deported on executive order when his case comes within the specific terms of the Act of 1917, that it was not the intention of Congress to repeal, alter or amend the Chinese Exclusion Act in so far as it makes provision for a judicial hearing on a charge of violation of its terms, and that the court ruled rightly when it held that appellee could not be deported by executive order.