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tificates within a year. The provision of the act that the executive officer acting in behalf of the United States should bring the Chinese laborer before a federal court in order that he might be heard and the facts upon which depended his right to remain in the country decided, was held valid, the duty that imposed upon the court being declared judicial in character. "When," the opinion declared, "in the form prescribed by law, the exccutive officer acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power; for here are all the elements of a civil case a complainant, a defendant, and a judge actor, reus et judex."

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In Ekiu v. United States' it was held that in reaching the determination whether an alien is lawfully entitled to enter the country, it is not necessary for the administration to take testimony. The court, however, say: "An alien immigrant, prevented from landing by any such officer claiming authority to do so under an Act of Congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.18 And Congress may, if it sees fit, as in the statutes in question in United States v. Jung Ah Lung, just cited, authorize the courts to investigate and ascertain the facts on which the right to land depends. But, on the other hand, the final determination of those facts may be intrusted by Congress to exccutive officers; and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty

17 142 U. S. 65; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146.

18 Citing Chew Heong v. United States, 112 U. S. 536; 5 Sup. Ct. Rep. 255; 28 L. ed. 770; United States v. Jung Ah Lung, 124 U. S. 621; 8 Sup. Ct. Rep. 663; 31 L. ed. 591; Wan Shing v. United States, 140 U. S. 424; 11 Sup. Ct. Rep. 729; 35 L. ed. 503.

to re-examine or controvert the sufficiency of the evidence on which he acted.19

It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor ever been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.20

The statute does not require inspectors to take any testimony at all, and allows them to decide on their own inspection and examination the question of the right of any alien immigrant to land. The provision relied on merely empowers inspectors to administer oaths and to take and consider testimony, and requires only testimony so taken to be entered of record.

The decision of the inspector of immigration being in conformity with the Act of 1891, there can be no doubt that it was final and conclusive against the petitioner's right to land in the United States. The words of section 8 are clear to that effect, and were manifestly intended to prevent the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise, save only by appeal to the inspector's official supervisors, and in accordance with the provisions of the Act."

In Lem Moon Sing v. United States 21 the contention was that while, generally speaking, the administrative officers might have jurisdiction under the statute to exclude an alien who was not by

19 Citing Martin v. Mott, 12 Wh. 19; 6 L. ed. 537; Philadelphia & T. R. Co. v. Stimpson, 14 Pet. 448; 10 L. ed. 535; Benson v. McMahon, 127 U. S. 457; 8 Sup. Ct. Rep. 1240; 32 L. ed. 234; Oteiza y Cortes v. Jacobus, 136 U. S. 330; 10 Sup. Ct. Rep. 1031; 34 L. ed. 464.

20 Citing Murray v. Hoboken Land & Imp. Co., 18 How. 272; 15 L. ed. 372; Hilton v. Merritt, 110 U. S. 97; 3 Sup. Ct. Rep. 548; 28 L. ed. 83.

21 158 U. S. 538; 15 Sup. Ct. Rep. 967; 39 L. ed. 1082.

law or treaty entitled to enter, yet if they do exclude an alien who is legally entitled to enter, they exceed their jurisdiction and their illegal action presents a judicial question for the decision of which the courts may intervene. The Supreme Court, however, refused to sustain the contention, saying: "That view, if sustained, would bring into the courts every case of an alien who claimed the right to come into the United States under some law or treaty, but was prevented from doing so by the executive branch of the government. This would defeat the manifest purpose of Congress in committing to subordinate immigration officers and to the Secretary of the Treasury exclusive authority to determine whether a particular alien seeking admission into this country belongs to the class entitled by some law or treaty to come into the country, or to a class forbidden to enter the United States. Under that interpretation of the Act of 1894 the provision that the decision of the appropriate immigration or custom's officers should be final, unless reversed on appeal to the Secretary of the Treasury, would be of no practical value."

§ 757. The Ju Toy Case.

In United States v. Sing Tuck,22 the contention was made that the question, whether or not a person seeking admission was an alien, necessarily involved the authority of the immigration officials to act at all, and that this jurisdictional question was one which the courts could not refuse to pass upon. In this case the Supreme Court avoided passing upon the point in limine, holding that the petitioner could not seek judicial remedy until he had exhausted (as he had not) the administrative remedies given him by statute. In United States v. Ju Toy,23 however, the petitioner had carried his appeal to the highest administrative official authorized by statute to consider his claim, and the Supreme Court. thereupon found itself obliged to pass upon the main contention, which it did, holding that the administrative decision as to the status of the petitioner, no abuse of authority being prima facie

22 194 U. S. 161; 24 Sup. Ct. Rep. 621; 48 L. ed. 917.
23 198 U. S. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 1040.

made out, was final and conclusive. The opinion of the court consists mainly of a review of the earlier cases which, it is alleged, covered the point at issue. As regards whether the petitioner was deprived of liberty without due process of law, the court say: "The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate. If, for the purpose of argument, we assume that the Fifth Amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him, due process of law does not require judicial trial. That is the result of the cases which we have cited, and the almost necessary result of the power of Congress to pass exclusion laws.”

From this decision three justices dissented. Justice Brewer in an opinion concurred in by Justice Peckham declared "appalling," the doctrine of the majority that one who, unless the very point at issue be prejudged, is a citizen of the United States may, though guilty of no crime, be, by the action of a ministerial officer, and without trial by jury or other judicial examination, punished by deportation and banishment. The dissenting justices then go on to review cases in which, they assert, is declared the doctrine that the courts will review the findings of executive officials with reference to those facts which determine their jurisdiction. The cases which are cited, however, do not determine this. They assert that the courts will review the judgments of administrative officials as to whether their authority extends over a given subject; that is, they will review the administrative interpretation of the statute conferring authority for administrative action, but the cases do not hold that, where the administrative decision is by statute made final, they will review a decision as to whether a given person or piece of property falls within the class of persons or property over which it is admitted that authority of the statute extends. Thus, had there been a question whether the Exclusion Act of Congress applied to aliens, the courts would review the administrative decision; but granting that it did apply to aliens, they would not review the judgment of the administra

tive officials as to whether or not a given individual was an alien, and, therefore, subject to expulsion or exclusion.24

Of course, if the question of alienage or citizenship is dependent upon a matter of law, and not a determination purely of fact, the matter will be reviewed by the courts. Thus, for example, in Gonzales v. Williams25 the court determined in the last instance whether or not a native of Porto Rico who was an inhabitant of that island at the time of its cession to the United States was upon her arrival at a port of this country to be treated as an alien immigrant within the meaning of the Act of Congress of 1891.

§ 758. Constitutional Requirements of Administrative Determinations.

The series of cases, culminating in that of United States v. Ju Toy, considered in the preceding paragraphs, are to be construed as determining simply that when, by statute, the conclusive determination of facts has been vested in administrative agents, a judicial review thereof may not be demanded as a constitutional right. In two respects, however, such administrative acts are, and constitutionally must be, reviewable in the courts. In the first place, as has already been pointed out, the question of the jurisdiction of the administrative agents or bodies to act is always open to judicial examination. In the second place, it is always open to the courts to determine whether, in the administrative procedure which has been followed, the essential procedural requirements of due process of law have been present. As said by the court in Yamataya v. Fisher,26 the court" must not be understood. as holding that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in due process of law' as understood at the time of the adoption of the Constitution."

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In this case it was held that due process was satisfied by an informal notice to the plaintiff that an investigation was to be had

24 Cf. article by Professor Powell, cited above.

25 192 U. S. 1; 24 Sup. Ct. Rep. 171; 48 L. ed. 317. 26 189 U. S. 86; 23 Sup. Ct. Rep. 611; 47 L. ed. 721.

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