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. 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." 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. to determine whether she should be deported, although it was alleged that, because of her lack of knowledge of the English language, she did not understand the import of the questions propounded to her, and that, in fact, she did not know that these questions related to the matter of her possible deportation. Where, from the nature of the case, the determination of the fact at issue, as, for example, the ascertainment of the character of a commodity, which character may be ascertained by comparing it with an established standard, it has been held that a hearing is not needed.27 And in Ekiu v. United States,27a earlier referred to, it will be remembered that it was held that the statute was held not to require inspectors to take testimony, but that they might decide upon their own inspection, whether an alien immigrant was entitled to enter the country; but that upon habeas corpus the question could be determined by the courts whether one prevented from landing had had an opportunity to ascertain whether his detention was lawful. In Chin Low v. United States,28 however, a habeas corpus having been denied by the lower federal courts, the Supreme Court, upon appeal, held that the writ should have been issued for the determination of the allegation that the petitioner had been prevented by the administrative officials from obtaining the testimony of certain witnesses in her behalf. In its opinion the court is, however, careful to say that the only question before it is whether a fair opportunity to a hearing has been given the petitioner, and not the correctness of the determination. The court do, however, go on to say that in those cases in which it is determined that the action of the administrative body has been unfair, in that it has denied a fair hearing, it becomes the necessary duty of the court to determine whether, in fact, upon the merits of the case, the petitioner is entitled to enter. As to this the court say: The decision of the Department is final, but that is on the presupposi 27 Public Clearing House v. Coyne, 194 U. S. 497; 24 Sup. Ct. Rep. 789; 48 L. ed. 1092. 27a 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146. 28 208 U. S. 8; 28 Sup. Ct. Rep. 201; 52 L. ed. 369. tion that the decision was after a hearing in good faith, however summary in form. As between the substantive right of citizens to enter and of persons alleging themselves to be citizens to have a chance to prove their allegation, on the one side, and the conclusiveness of the commissioner's fiat on the other, when one or the other must give way, the latter must yield. In such a case something must be done, and it naturally falls to be done by the courts. The courts must deal with the matter somehow, and there seems to be no way so convenient as a trial of the merits before the judge. If the petitioner proves his citizenship, a longer restraint would be illegal. If he fails, the order of deportation would remain in force." § 759. Arbitrary Administrative Discretion. Generally speaking, it may be said that while wide discretionary power may constitutionally be granted to administrative agents, that discretion must be one which must be guided by reason, justice, and impartiality, and must be exercised in the execution of policies predetermined by legislative act, or fixed by the common law. In Yick Wo v. Hopkins29 the court laid down the doctrine that the legislative investment of purely personal and arbitrary power in the hands of any public official is a denial of due process of law. "The very idea," say the court, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." 30 Of the ordinances in question the court say: "They seem intended to confer and actually do confer, not a discretion upon consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not as to places but as to persons. The power given to them [the supervisors] is not confided to their discretion in the legal sense of that term, but is granted 29 118 U. S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 220. 30 Quoting and approving City of Baltimore v. Radecke, 49 Md. 217. |