[268 U.S. 336, 337] Messrs. George A. McGowan, of San Francisco, Cal., Frederic D. McKenney, of Washington, D. C., and John L. McNab, of San Francisco, Cal., for petitioner Cheung Sum Shee.
Mr. Assistant Attorney General Donovan, for Commissioner.
Roger O'Donnell and W. J. Peters, both of Washington, D. C., amici curiae.
[268 U.S. 336, 343] Messrs. Henry W. Taft, of New York City, A. Warner Parker, of Washington, D. C., John J. Sullivan, of New York City, and
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Petitioners are alien wives and minor children of resident Chinese merchants lawfully domiciled within the United States. They departed from China on the steamship President Lincoln, and upon arrival at San Francisco, July 11, 1924, sought permanent admission to the United States. The Secretary of Labor denied their applications and gave the following reasons therefor:
The court below has inquired, Judicial Code, 239 (Comp. St. 1216):
Prior to July 1, 1924, petitioners, if otherwise unobjectionable, might have been admitted notwithstanding their race and nationality. United States v. Mrs. Gue Lim, 176 U.S. 459, 466 , 468 S., 20 S. Ct. 415; Yee Won v. White, 256 U.S. 399, 400 , 401 S., 41 S. Ct. 504. But it is said they are absolutely excluded by the 'act to limit the immigration of aliens into the United States, and for other purposes,' approved May 26, 1924, c. 190, 43 Stat. 153, applicable provisions of which follow:
The present existing treaty of commerce and navigation with China, dated November 17, 1880, 22 Stat. 826, 827, provides:
An alien entitled to enter the United States 'solely to carry on trade' under an existing treaty of commerce and navigation is not an immigrant within the meaning of the Act, 3(6), and therefore is not absolutely excluded by section 13.
The wives and minor children of resident Chinese merchants were guaranteed the right of entry by the treaty of 1880 and certainly possessed it prior to July 1st when the present Immigration Act became effective. United States v. Mrs. Gue Lim, supra. That act must be construed with the view to preserve treaty rights unless clearly [268 U.S. 336, 346] annulled, and we cannot conclude that, considering its history, the general terms therein disclose a congressional intent absolutely to exclude the petitioners from entry.
In a certain sense it is true that petitioners did not come 'solely to carry on trade.' But Mrs. Gue Lim did not come as a 'merchant.' She was nevertheless allowed to enter, upon the theory that a treaty provision admitting merchants by necessary implication extended to their wives and minor children. This rule was not unknown to Congress when considering the act now before us.
Nor do we think the language of section 5 is sufficient to defeat the rights which petitioners had under the treaty. In a very definite sense they are specified by the act itself as 'nonimmigrants.' They are aliens entitled to enter in pursuance of a treaty as interpreted and applied by this court 25 years ago.
The question propounded by the court below must be answered in the negative.