Nagle v. Loi Hoa Same/Opinion of the Court

Respondents, Chinese merchants born in China and never naturalized elsewhere, applied at the port of San Francisco for admission into the United States. They had resided in French Indo-China and been engaged in business there for a number of years. They presented to the immigration authorities certificates of identification issued by officials of French Indo-China, with visas by the American Consul at Saigon, French Indo-China. They were denied admission on the ground that the certificate of identification required by section 6 of the Chinese Exclusion Act (Act of May 6, 1882, c. 126, 22 Stat. 58, 60 as amended by the Act of July 5, 1884, c. 220, 23 Stat. 115, 116, 117; U.S.C. title 8, § 265 (8 USCA § 265)), was a certificate of the government of which respondents were subjects, in this case the Chinese government, and not a certificate of the government of French Indo-China, where respondents merely resided. Their petitions for writs of habeas corpus were denied by the District Court for Northern California. On appeal the two cases were consolidated in the Circuit Court of Appeals for the Ninth Circuit, and the judgments of the District Court reversed. Loi Hoa v. Nagle, 13 F.(2d) 80. This court granted certiorari. 273 U.S. 682, 47 S.C.t. 237, 71 L. Ed. 837.

Article 2 of the treaty of November 17, 1880, between the United States and China (22 Stat. 826, 827), provides for the admission of Chinese subjects 'proceeding to the United States as * *  * merchants.' Section 15 of the Exclusion Act, as amended (8 USCA § 273), makes the act applicable 'to all subjects of China and Chinese, whether subjects of China or any other foreign power.' Section 6 as amended (the relevant portions are in the margin ) requires 'every Chinese person, other than a laborer, who may be entitled by said treaty or this act' to admission, to '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.' The sole question presented is whether the word 'subject' as used in section 6 is to be taken as including only those persons who by birth or naturalization owe permanent allegiance to the government issuing the certificate, or as embracing also those who, being domiciled within the territorial limits of that government, owe it for that reason obedience and temporary allegiance.

The word may be used in either sense. See The Pizarro, 2 Wheat. 227, 245, 4 L. Ed. 226; Carlisle v. United States, 16 Wall. 147, 154, 21 L. E. 426. If the narrower meaning be the appropriate one, the respondents were 'subjects' of the Chinese government, and it alone could issue certificates entitling them to admission. The government of French Indo-China could issue such certificates only to persons of the Chinese race who owed it permanent allegiance.

The Circuit Court of Appeals thought that, since the statute was in execution of a treaty with China, which related only to the immigration of Chinese nationals, the provisions in section 6 for the certification of identity could have no application to persons of Chinese race who were nationals of other governments, and so concluded that certificates were required of governments other than China only in the case of Chinese nationals resident under those governments.

But in this view it is overlooked that the amended Exclusion Act is broader than the treaty. Before the amendment the federal courts had not agreed whether persons of Chinese race who were nationals of countries other than China were affected by the statute. United States v. Douglas (C. C.) 17 F. 634; In re Ah Lung (C. C.) 18 F. 28. Section 15 of the amended act made all its provisions applicable 'to all subjects of China and Chinese, whether subjects of China or any other foreign power.' The avowed purpose of the amendment was to alter the act as interpreted in United States v. Douglas, supra, where it had been held to have no application to Chinese subjects of Great Britain. Report of Committee on Foreign Affairs, 48th Cong. 1st. Sess. H. Rep. 614, p. 2. The purpose, therefore, of the insertion in section 6 of the phrase 'of such other foreign government of which at the time such Chinese person shall be a subject' was to require Chinese immigrants owing permanent allegiance to governments other than China to present certificates from the governments of their allegiance.

Something may be said in support of the view that the more usual and, perhaps, more accurate use of the word 'subject' is that contended for by the government. Const. U.S. art. 3, § 2; Hammerstein v. Lyne (D. C.) 200 F. 165; Dicey, Conflict of Laws (2d Ed.) 164. It is so used in our immigration and naturalization laws. Act of February 5, 1917, c. 29, § 20, 39 Stat. 874, 890 (8 USCA § 156); Act of June 29, 1906, c. 3592, § 4, 34 Stat. 596 (Comp. St. § 4352). It may be said, also, that the importance of administrative convenience and certainty in a statute of this character suggests that the word was used as indicating citizenship by birth or naturalization, a status more easily ascertained than that of domicile or residence. But these considerations need not detain us in view of the history of the legislation, to which we have already referred, and of the long and consistent practical construction of the act.

Both governments appear to have treated section 6 as amended as requiring the certificate to be issued by the Chinese government, except where the immigrant owes permanent allegiance to another foreign government. The administrative regulations of the various departments have from the first required that the certificates of Chinese subjects coming from countries other than China be issued by Chinese consular officers.

This interpretation was accepted by President Cleveland in his special message of April 6, 1886. 8 Richardson, Messages and Papers of the Presidents, 391. He recommended legislation permitting the certificate in the case of Chinese nationals, resident in other foreign countries where there were no Chinese consular officers, to be issued by United States consuls in those countries. The Chinese government has uniformly authorized its diplomatic and consular officers in foreign countries to issue such certificates in the case of Chinese subjects resident there. The validity of such certificates issued to Chinese subjects by consular officers of China in other foreign countries had been recognized by the Department of State and upheld by the Attorney General.

Added weight is given to this course of practical construction by the history of article 3 of the treaty with China of March 17, 1894, 28 Stat. 1210, and of the later legislation re-enacting the Exclusion Act. Article 3 provided that Chinese subjects entitled to admission might 'produce a certificate from their government or the Government where they last resided.' The very fact that it was thought necessary to incorporate this provision in the treaty is a recognition that the pre-existing legislation did not have that effect. The treaty expired by limitation in 1904 and was not renewed. While it was in force Chinese nationals, resident abroad, could be admitted to the United States on presentation of a certificate either of the Chinese government, as authorized by section 6, or of the government of their residence, as permitted by the treaty. During the life of the treaty the amended Exclusion Act, continued in force for 10 years from May 5, 1892, by the act of that date (chapter 60, § 1, 27 Stat. 25 (Comp. St. § 4315)), would have expired. But by the Act of April 29, 1902, c. 641, § 1, 32 Stat. 176, 'all laws now in force * *  * regulating the coming of Chinese persons, *  *  * into the United States, *  *  * are hereby, re-enacted, extended, and continued so far as the same are not inconsistent with treaty obligations, until otherwise provided by law.' By this statute the certificate provisions of section 6 of the amended Exclusion Act were continued indefinitely and, on the expiration in 1904 of the treaty of 1894, became the only law on that subject. The reenactment of section 6 unchanged, and subject only to the provisions of a treaty now expired, must be accepted as a legislative approval of the practical construction the section had received. Compare National Lead Co v. United States, 252 U.S. 140, 40 S.C.t. 237, 64 L. Ed. 496.

If there could be doubt as to the proper interpretation of section 6 standing alone we think all ambiguity has been removed by the history of the legislation and the practical construction which has been given to it.

Reversed.