shall be carried out.' This Potsdam declaration was subsequently adhered to by the U.S.S.R. On September 2, 1945, the Japanese Government, in the instrument of surrender, accepted the provisions of the declaration. The Supreme Allied Commander for the Allied Powers then issued Directive No. 1 under which the Japanese Imperial Headquarters issued General Order No. 1 requiring Japanese commanders in Formosa to surrender to Generalissimo Chiang Kai-shek of the Republic of China. Since September 1945 the United States and the other Allied Powers have accepted the exercise of Chinese authority over the island. In article 2 of the Japanese Peace Treaty, which entered into force April 28, 1952, Japan renounced all 'right, title and claim' to Formosa. Neither this agreement nor any other agreement thereafter has purported to transfer the sovereignty of Formosa to China.' (Emphasis supplied.)
'In giving the historical background of Formosa it has been pointed out that at Cairo the Allies stated it was their purpose to restore Formosa to Chinese sovereignty and at the end of the war the Republic of China received the surrender of Japanese forces in Formosa. It has also been pointed out that under the Japanese Peace Treaty Japan renounced all right, title, and claim to Formosa. However, neither in that treaty nor in any other treaty has there been any definitive cession to China of Formosa. The situation is, then, one where the Allied Powers still have to come to some agreement or treaty with respect to the status of Formosa.' (Emphasis supplied.)
From the foregoing official pronouncements of the Department of State, it appears that the United States recognizes the Government of the Republic of China as the legal government of China; that the provisional capital of the Republic of China has been at Taipei, Taiwan (Formosa) since December 1949; that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China. Expressions of the State Department are drawn with care and circumspection to refrain from such recognition.
Whether such a territory may be regarded as a part of a country as that term is used in the Immigration laws, does not appear to have been decided. The existence of the question was noted by Mr. Justice Brandeis in United States ex rel. Mensevich v. Tod, 264 U.S. 134, 137, 44 S. Ct. 282, 68 L. Ed. 591, but expressly left open.
The conclusion seems inescapable to this Court that since under existing law, deportation may be effected only to a specific country, in this instance China, and since Formosa is not regarded by the Department of State as part of China as a country, the plaintiffs may not be deported to Formosa. Manifestly, as has been shown heretofore in this matter the Court must be bound by the official attitude of the Department of State, which apparently has been studied very carefully and expressed in guarded phraseology. It is even conceivable that for the Court then to regard Formosa as part of China for any purpose and thus go beyond the expressions of the Department of State, might cause embarrassment or complications insofar as that Department is concerned.
It is urged by Government counsel that the word 'country' should be given a broad meaning. Manifestly, a statute should not be construed literally, but should receive a reasonable and sensible interpretation. On the other hand, the Courts should resist any temptation to read into a statute something that is not there, or place a tortured construction on an enactment with a view to effectuating that the Court may think the Congress would have done had the matter been called to its attention. To do so would be an encroachment on the legislative power. It is peculiarly so in this instance because in the 1952 revision, the Congress dropped the provision contained in the 1917 Act, which permitted deportation to a specific foreign port. It would seem that to adopt the construction urged by the Government would in effect reinsert that phrase back in the statute -- something that the Congress has not done so far and that the Court may not do.
The decision of the Fourth Circuit in Delany v. Moraitis, 136 F.2d 129, on which Government counsel, in part, rely, does not seem to help their position. That case held that a citizen of Greece, whose deportation had been ordered but who could not be deported to Greece because Greece had been overrun by Germany during the war, could be delivered into the custody of the Greek Government in exile in England. It must be observed that Judge Parker in his opinion based his decision very largely on war conditions then prevailing. The Congress later, in the 1952 revision, expressly limited the effect of the decision in the Delany case to deportation in time of war, 8 U.S.C.A. § 1253(b)(1). Consequently, the conclusion of the Delany case must be regarded as law only in time of war.
The Court is not unmindful of the fact that its conclusion leads to a temporary impasse and makes it impossible for the time being to effect the deportation of the plaintiffs, and possibly other citizens of China. This matter can, however, be easily solved, for the Congress can readily and promptly amend the statute and make the amendment retroactive, if it feels that deportation should be effected. This course need not involve undue delay. The Congress could possibly amend the statute by reinserting into it the abovementioned provision from the 1917 Act, or by providing that deportation may be effected to any territory or area provisionally occupied by the Government of the country to which deportation must be effected, or in some other manner that would accomplish the same objective. Legislative action would be the orderly course. For the Court to construe the present Act as meaning something that it does not purport to mean, would be an invasion of legislative power.
Motion of defendant for summary judgment is denied.
Motion of plaintiffs for summary judgment it granted.