Page images

natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start in by inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

I am, of course, far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate."

And quoting from Heck v. State (H4 Ohio Stat., 536):

“Where the language used in a revised statute is of such doubtful import as to call for construction, it is both reasonable and usual to refer to the statute or statutes from wbich the revision has been made. But where the language is plain and leads to no absurd or improbable results, there is no room for construction and it is the duty of the courts to give it the effect required by the plain and ordinary signification of the words used, whatever may have been the language of the prior statute or the construction placed

upon it.”

And quoting also from United States v. Brown (100 U. S., 508), on page 513:

"Where there is a substantial doubt as to the meaning of the language used in the revised, the old law is a valuable source of information. The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the 1st day of December, 1373. When the meaning is plain the courts can not look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Con


This, then, is the rule when provisions of a former act are carried into amendatory or revised statutes, viz: Where the meaning of such provision is plain, it must be observed without any reference to the original act or to the meaning or construction of the provision thereunder. If the provision be doubtful, obscure, or ambiguous, resort may be had to the original act and to the meaning and construction thereunder of the particular provision, but even then only for the purpose of ascertaining the true meaning of the provision in its present place, and not at all with any idea of making it conform to its former meaning or construction; and if its former construction was not the result of an interpretation of the meaning of its language, but was made necessary by other provisions of the original act not carried into the existing one to affect construction, it is manifest that the former construction can not be resorted to, and can not affect the meaning or construction of the provision in its new relation.

Specifically, then, answering your question, it is my opinion that the transaction stated in your letter should be stamped as required under the provisions of the act of March 2, 1901. Very respectfully,



A Chinese laborer, holding a certificate of residence under the act of

May 5, 1892 (27 Stat., 25), who, prior to his leaving this country, has made application under oath for a return certificate, but who has not filed such application with the collector of customs nor received a return certificate, as required by the treaty of 1894 with China ( 28 Stat., 1210) and the act of September 13, 1888 (25 Stat., 478), is not entitled to reentry, although such application bears upon its face the stamp and signature of the Chinese inspector showing the departure of such

laborer on a certain date. Nor has the Treasury Department authority to issue to such person a

return certificate nunc pro tunc, although such person may have believed that he had done all that was incumbent upon him, and may have been misled by the action of the Government officer in affixing to such application his certificate of departure.


February 11, 1902. SIR: I have the honor to acknowledge the receipt of your letter of January 20, with its inclosures, relating to the case of a returning Chinese laborer who has been denied admission to this country, and submitting certain questions of law thereon for my opinion.

The facts are that Jung Wai Yuen is a Chinese laborer wbo holds a certificate of residence under the act of 1892, which was issued to him at San Francisco in 1894; that on April 8, 1901, he signed under oath an application addressed to the collector of customs at San Francisco under the treaty of 1894 and the act of September 13, 1888, for a “return certificate,” in which he states that he has a lawful wife and child in this country; that his residence is in San Francisco, and that he desires to depart for China with the intention of returning within one year. It does not appear that the application was ever presented to the collector of customs at San Francisco, nor was a return certificate ever signed and delivered by that officer to the Chinaman. The application bears across its face the stamp and signature of the Chinese inspector, showing departure from San Francisco per steamer on April 9, 1901. Upon the Chinaman's return be was denied admission on the ground that he had failed to secure a return certificate, and the claim is now advanced in his behalf that he was deceived by the action of the Chinese inspector and supposed that he would be entitled to return on the application so stamped; and the request is made that the Secretary of the Treasury instruct the collector of customs at San Francisco that if, after investigation, Jung Wai Yuen shall appear to have been entitled thereto, to issue to him a return certificate nunc pro tune. Thereupon you ask for my opinion on the question whether the Treasury Department has the authority to accept, in lieu of the provisions of the law requiring the application to be made thirty days in advance of departure, the granting of a return certificate before departure, and the presentation of such certificate upon return, a return certificate made out in accordance with the request on the Chinaman's behalf.

The treaty of 1894 provides in Article II that a registered Chinese laborer possessing the necessary relationship or property interest in this country may return after a temporary absence upon the express condition that he shall, before leaving the United States, deposit with the collector of customs at the port of departure a full description, in writing, of his family or property or debts, and shall be furnished by the collector with a return certificate, as the laws prescribe, not inconsistent with the treaty.

Section 7 of the act of September 13, 1888, required the application for the return certificate of such Chinese laborers to be made to the collector of customs a month prior to the time of departure. The existing validity of that act has been questioned, and the status of section 8, authorizing the Secretary of the Treasury to frame regulations upon this and other subjects, is involved in cases now before the Supreme Court for decision. Section 12 has been held by the court not to be in force. (Li Sing v. United States, 180 U. S., 486.) The ground of this decision appears to be that the effect of a later act was to repeal that section or enact a substitute for the rule thereof. In an opinion dated October 10, 1901, I held upon similar ground that a requirement of a separate paragraph of section 7 has been replaced by the relative provision of the treaty of 1894. Nevertheless, it has been held in general by Federal courts that while sections 1 to 4 and section 15 of the act never took effect, because the treaty upon which they were dependent was not ratified, the remainder of the act was not dependent on the treaty and has a field of operation as existing law. There are variances in the views of the district courts on this point, and some uncertainty in the opinions of Attorneys-General, but in the main this is the result of the decisions, and this view was followed by the Treasury Department under an opinion of the Solicitor of the Treasury, and the present regulations as to the return of registered laborers were accordingly adopted and promulgated. (T. D. 21357; Regulations, edition of 1900, pars. 39 et seq.) These regulations incorporate the provisions of Article II of the treaty of 1894 and of sections 6 and 7 of the act of 1888, and among other steps require a registered Chinese laborer claiming the right to leave the United States and return thereto to make application to the collector of customs at least a month prior to the time of his departure. The collector of customs is required to make a thorough examination as to the accuracy of the applicant's statements, and if he finds that the Chinese person is entitled to a return certificate, he may sign and give the same to him in a form particularly described. Various other requirements to insure accuracy and to prevent frauds are imposed upon the exercise of the right of departure and return, all showing that the administration of this subject is rigidly guarded and applied in evident obedience to this provision of section 7 of the act of 1888, which has been carried into the regulations:

“And no Chinese laborer shall be permitted to reenter the United States without producing to the proper officer of the customs at the port of such entry the return certificate herein required.”

In view of the entire situation I am of the opinion that the portion of the act of 1888 involved herein must be regarded as in force until and unless an authoritative judicial decision holds otherwise.

Opinions of my predecessors uniformly hold that the requirements of the Chinese exclusion laws must be strictly complied with by applicants for admission. (21 Opin., 6.) Earlier conditions of the return of Chinese laborers are characterized as "stringent" (Id., 424), and the import of that opinion is that all such provisions should be strictly construed. “The character and purpose of the Chinese exclusion legislation demand that the statutory provisions upon which the right of entry is conditioned should be strictly obeyed and construed. This has been the ruling of the courts” (citing authorities]. (22 Opin., 608; see also Id., 72; Id., 130.)

21 Opinion, 424, practically rules the present case. It appears there that the Chinese laborers before leaving this country complied with all the requirements except that of procuring from the collector of customs at the port of departure certificates of their right to return. It was Mr. Harmon's opinion that the words“ before leaving the United States" in Article II of the treaty of 1894 qualify the words “shall be furnished by said collector with such certificate of his right to return," and that it was the intent that each Chinaman should, before leaving, receive such certificate in order to entitle him to return; and it was held that departing Chinese laborers are not entitled to leave the country

« PreviousContinue »