Mr. Assistant Attorney General Fitts, for the United States.
Mr. Francis R. Marvin, of Cleveland, Ohio, for Woo Jan.
Mr. Justice McKENNA delivered the opinion o the Court.
The Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898 (Comp. St. 1916, 4270), provides as follows:
It is provided, however (section 43 [section 4289]):
The relation of these sections has given rise to diversity of decision, District Courts of different districts and Circuit Courts of Appeals for different circuits being in opposition. Ex parte Woo Shing (N. D. Ohio), 226 Fed. 141, sustains the power of the Secretary of Labor exercised under section 21, and the decision was approved by the Circuit Court of Appeals for the Eighth Circuit. Lo Pong v. Dunn, 235 Fed. 510, 149 C. C. A. 56; Sibray v. United States, 227 Fed. 1, 141 C. C. A. 555. The power of the Secretary was denied in the instant case by the District Court for the Eastern District of Kentucky (228 Fed. 927), and the decision has been followed by the Circuit Courts of Appeals for the Seventh and Fifth Circuits. United States v. United States ex rel. Lem Him, 239 Fed. 1023, 152 C. C. A. 661; Lee Wong Hin v. Mayo, 240 Fed. 368, 153 C. C. A. 294.
The Circuit Court of Appeals, reciting this diversity, certifies to this court the following questions, '(a in the abstract, b concretely)':
The facts are these: The Secretary of Labor, attempting to exercise the power supposed to be conferred upon him by section 21, caused the arrest of Woo Jan as a Chinese alien unlawfully within the United States, with the view and purpose of deporting him. The warrant of arrest recited 'that the said alien is unlawfully within the United States in that he is found therein in violation of the Chinese Exclusion Laws, and is, therefore, subject to deportation under the provisions of section 21' of the act of Congress of February 20, 1907, amended by the act of March 26, 1910 (Comp. St. 1916, 4244, 4247). It was directed to the 'Inspector in Charge, Cleveland, Ohio, or to any immigrant inspector in the service of the United States.'
Woo Jan petitioned the District Court in habeas corpus to be discharged from the arrest, asserting his right to be and remain in the United States and setting up as grounds of it that he was a merchant, and that his status as a resident had been investigated by the authorities of the United States and established, and that there was no authority of law for the issue of the warrant. To the petition the District Attorney demurred, and the court, holding that the warrant had been issued without authority of law, ordered the discharge of Woo Jan. The case, therefore, presents to us through the questions certified the validity of the judgment.
We are admonished at the outset by the diversity of opinion that there are grounds for opposing contentions. Indeed sections 21 and 43 seem to be, at first impression, in irreconcilable conflict. The declaration of section 21 is that the power of the Secretary of Labor shall extend to taking into custody and returning to the country from whence [245 U.S. 552, 555] he came whoever is subject to deportation under the provisions 'of any law of the United States.' The universality of the declaration would seem to preclude exception and compel a single judgment. But, passing on to section 43, we find another law preserved and kept in function, a function so firm and exclusive that it is provided that the act, of which section 21 is but a part, shall not be construed to 'repeal, alter or amend' it. Let us repeat the language:
There is, therefore, an express qualification of the universality of section 21, indeed, from all of the provisions of the act the Chinese exclusion laws are excepted. They, the latter, are to stand in their integrity and efficacy. But it is asserted that they are so left to stand, and that section 21 only gives another remedy, and United States v. Wong You, 223 U.S. 67 , 32 Sup. Ct. 195, is cited, first as to the assertion, then as to the cited case.
That we may estimate both we insert in the margin the provisions of the Exclusion Laws. 1 The government, [245 U.S. 552, 556] confronted with those provisions, conceded at bar that the remedy of section 21 is not their equivalent. The difference is marked. It is the difference between administrative and judicial action; and the government recognized that the difference-we might say contrast-is the step on which it 'must fall down, or else o'erleap.' And necessarily so. Manifestly the remedy of section 21 has not the safeguards of impartiality and providence that the remedy of the Exclusion Laws has. Mere discretion prompts the first and last act of the former; the latter has the security of procedure and ultimate judgment of a judicial tribunal, where all action which precedes judgment is upon oath and has its assurance and sanctions.
The remedies are too essentially different to be concurrent. And yet we are asked to decide that the law which permits the first, that is, permits the deportation of an [245 U.S. 552, 557] alien simply upon the warrant or determination of an executive officer, is not an amendment or alteration of a law which prohibits it. 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 safe guards. The cases demonstrate this and we cannot believe that Congress was insensible of it and left it possible. Nor can we ascribe to Congress a deliberately deceptive obscurity and an intention, by the use of words which can be given a double sense, to grant a right that can have no assertion. We must, indeed, assume that section 43 was intended to be sufficient of itself- fully exclusive and controlling.
We might terminate the discussion here and leave the case to the explicit language of section 43 that section 21 (to pass at once to the particular) 'shall not be construed to alter, repeal or amend existing laws relating to the immigration or exclusion of Chinese persons.' The government, however, contends, as we have seen, that this court has decided to the contrary in United States v. Wong You, supra.
The government's understanding of the case is erroneous. It concerned Chinese persons, but not the Exclusion Laws, and it was decided that such persons might offend against the Immigration Act and be subject to deporation by the Department of Labor if they should so offend. This was the extent of the decision, and its language was addressed to the contention that the latter act was applicable to all persons except Chinese because of section 43. The content on was declared to be untenable, and it was untenable. The case, therefore, is different from that at bar and the opinion was considerate of the difference, that is, considerate of the difference between the Immigration Act and the Exclusion Laws.
This difference must be kept in mind. The Chinese Exclusion Laws have not the character or purpose of the Im- [245 U.S. 552, 558] migration Act. They are addressed under treaty stipulations2 to laborers only. Other classes are not included in their limitation and it was provided by the treaty that the limitation or suspension of the entry of laborers should be reasonable. The questions therefore which could arise were deemed different from any under the Immigration Act, and the Exclusion Laws are adapted to them and their procedure is hence saved by section 43.
We, therefore, answer question '(a)' No, and question '(b)' Yes.
And it is so ordered.
Mr. Justice CLARKE took no part in the consideration and decision of this case.
[ Footnote 1 ] The act of May 6, 1882, 1, as amended by the act of July 5, 1884 ( 22 Stat. 58; 23 Stat. 115 [Comp. St. 1916, 4290]), provides that:
Section 13 of the Act of September 13, 1888 (25 Stat. 476, 479 [Comp. St. 1916, 4313]), entitled 'An act to prohibit the coming of Chinese laborers to the United States,' provides:
Section 3 of the Act of March 3, 1901 (31 Stat. 1093 [Comp. St. 1916 , 4334]), provides:
By the act of April 29, 1902, 1, as amended and re-enacted by section 5 of the Deficiency Act of April 27, 1904 (32 Stat. 176; 33 Stat. 428 [Comp. St. 1916, 4337]), 'all laws ... regulating, suspending, or prohibiting the coming of Chinese persons or persons of Chinese descent into the United States ... are hereby re-enacted, extended, and continued, without modification, limitation, or condition.'
[ Footnote 2 ] Article I of the treaty provides that whenever in the opinion of the United States the coming of Chinese laborers to the United States or their residence therein might affect the interests of the United States, it was agreed that the United States might regulate, limit or suspend such coming or residence, but not absolutely prohibit it, and that the limitation should be reasonable and apply only to laborers, other classes not being included in the limitation. Article II of the treaty is as follows: