CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
MR. JUSTICE SHIRAS, after making the above statement, delivered the opinion of the court.
The first contention on behalf of the petitioner is that the collector of customs at Malone had exclusive jurisdiction to hear and determine the right of petitioner to enter the country; that any error committed by the collector could only be reviewed by the Secretary of the Treasury, and that, consequently, the commissioner had no jurisdiction to act in the present case.
This contention is based upon the provisions of section 12 of the act of September 13, 1888, 25 Stat. 476, c. 1015, as follows: "And the collector shall in person decide all questions in dispute, with regard to the right of any Chinese passenger to enter the United States, and his decision shall be subject to review by the Secretary of the Treasury, and not otherwise."
Doubtless, if this section had gone into effect and had continued to be in effect until August 27, 1896, when the collector at Malone acted in the matter, his decision would have been final as to the questions passed on by him. But the act of September 13, 1888, was passed to take effect upon the ratification of a treaty then pending between the United States and the Emperor of China, and it is conceded that such treaty never was ratified.
Thereupon, the treaty not having been ratified, the act of October 1, 1888, 25 Stat. 504, c. 1064, was passed, which declared that from and after its passage it should be unlawful for any Chinese laborer, who at any time before had been or was then,
or might thereafter be, a resident within the United States, and who had departed of might depart therefrom, and should not have returned before its passage, to return to or to remain in the United States, and that no certificates of identity, under which by the act of May 6, 1882, Chinese laborers departing from the country were allowed to return, should thereafter be issued, and it annulled every certificate of the kind which had been previously issued, and provided that no Chinese laborer should be permitted to enter the United States by virtue of any such certificate.
The effect of this act was considered by this court in the case of Wan Shing v. United States, 140 U.S. 424, decided May 11, 1891. In the opinion in that case the act of July 5, 1884, c. 220, 23 Stat. 115, was cited as still in force, which provided that any certificate given by the Chinese government, and vised by the endorsement of the diplomatic or consular representative of the United States in China, shall be prima facie evidence of the fact set forth therein, and shall be produced to the collector of customs of the port in the district of the United States, at which the person named therein shall arrive, and after produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; but said certificate might be controverted and the facts therein stated disproved by the United States authorities.
In summing up a review of the existing acts of Congress, the court, in that case, through Mr. Justice Field, said:
"The result of the legislation respecting the Chinese would seem to be this, that no laborers of that race shall hereafter be permitted to enter the United States, or even to return after having departed from the country, though they may have previously resided therein and have left with a view of returning."
The counsel for the petitioner cite cases in some of the Circuit Courts of the United States in which it has been held that some of the provisions of the act of September 13, 1888, notwithstanding the ...