Nishimura Ekiu v. United States
STATEMENT BY MR. JUSTICE GRAY.

Habeas corpus, sued out May 13, 1891, by a female subject of the emperor of Japan, restrained of her liberty and detained at San Francisco upon the ground that she should not be permitted to land in the United States. The case, as appearing by the papers filed, and by the report of a commissioner of the circuit court, to whom the case was referred by that court 'to find the facts and his conclusions of law, and to report a judgment therein,' and by the admissions of counsel at the argument in this court, was as follows:

The petitioner arrived at the port of San Francisco on the steamship Belgic, from Yokohama, Japan, on May 7, 1891. William H. Thornley, commissioner of immigration of the state of California, and claiming to act under instructions from and contract with the secretary of the treasury of the United States, refused to allow her to land; and on May 13, 1891, in a 'report of alien immigrants forbidden to land under the provisions of the act of congress approved August 3, 1882, at the port of San Francisco, being passengers upon the steamer Belgic, Walker, master, which arrived May 7, 1891, from Yokohama,' made these statements as to the petitioner: 'Sex, female; age, 25.' 'Passport states that she comes to San Francisco in company with her husband, which is not a fact. She states that she has been married two years, and that her husband has been in the United States one year, but she does not know his address. She has $22, and is to stop at some hotel until her husband calls for her.'

With this report Thornley sent a letter to the collector, stating that after a careful examination of the alien immigrants on board the Belgic he was satisfied that the petitioner and five others were 'prohibited from landing by the existing immigration laws,' for reasons specifically stated with regard to each; and that, pending the collector's final decision as to their right to land, he had 'placed them temporarily in the Methodist Chinese Mission, as the steamer was not a proper place to detain them, until the date of sailing.' On the same day the collector wrote to Thornley, approving his action.

Thereafter, on the same day, this writ of habeas corpus was issued to Thornley, and he made the following return thereon: 'In obedience to the within writ I hereby produce the body of Nishimura Ekiu, as within directed, and return that I hold her in my custody by direction of the customs authorities of the port of San Francisco, Cal., under the provisions of the immigration act; that, by an understanding between the United States attorney and the attorney for petitioner, said party will remain in the custody of the Methodist Episcopal Japanese and Chiness Mission pending a final disposition of the writ.' The petitioner remained at the mission-house until the final order of the circuit court.

Afterwards, and before a hearing, the following proceedings took place: On May 16th the district attorney of the United States intervened in opposition to the writ of habeas corpus, insisting that the finding and decision of Thoruley and the collector were final and conclusive, and could not be reviewed by the court. John L. Hatch, having been appointed on May 14, by the secretary of the treasury, inspector of immigration at the port of San Francisco, on May 16th made the inspection and examination required by the act of March 3, 1891, c. 551, entitled 'An act in amendment to the various acts relative to immigration and the importation of aliens under contract or agreement to perform labor,' (the material provisions of which are set out in the margin, ) and refused to allow the petitioner to land, and made a report to the collector in the very words of Thornley's report, except in stating the date of the act of congress, under which he acted, as March 3, 1891, instead of August 3, 1882; and, on May 18th, Hatch intervened in opposition to the writ of habeas corpus, stating these doings of his, and that upon said examination he found the petitioner to be 'an alien immigrant from Yokohama, empire of Japan,' and 'a person without means of support, without relatives or friends in the United States,' and "a person unable to care for herself, and liable to become a public charge,and therefore inhibited from landing under the provisions of said act of 1891, and previous acts of which said act is amendatory:" and insisting that his finding and decison were reviewable by the superintendent of immigration and the secretary of the treasury only.

At the hearing before the commissioner of the circuit court, the petitioner offered to introduce evidence as to her right to land; and contended that the act of 1891, if construed as vesting in the officers named therein exclusive authority to determine that right, was in so far unconstitutional, as depriving her of her liberty without due process of law; and that by the constitution she had a right to the writ of habeas corpus, which carried with it the right to a determination by the court as to the legality of her detention, and therefore, necessarily, the right to inquire into the facts relating thereto.

The commissioner excluded the evidence offered as to the petitioner's right to land; and reported that the question of that right had been tried and determined by a duly-constituted and competent tribunal having jurisdiction in the premises; that the decision of Hatch, as inspector of immigration, was conclusive on the right of the petitioner to land, and could not be reviewed by the court, but only by the commissioner of immigration and the secretary of the treasury; and that the petitioner was not unlawfully restrained of her liberty.

On July 24, 1891, the circuit court confirmed its commissioner's report, and ordered 'that she be remanded by the marshal to the custody from which she has been taken, to-wit, to the custody of J. L. Hatch, immigration inspector for the port of San Francisco, to be dealt with as he may find that the law requires, upon either the present testimony before him, or that and such other as he may deem proper to take.' The petitioner appealed to this court.

Lyman I. Mowry, for appellant.

Asst. Atty. Gen. Parket, for the United States.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court. 

Notes

By sections 3 and 4, certain offenses are defined and subjected to the penalties imposed by the act of February 26, 1885, c. 164, § 3, namely, penalties of $1,000, 'which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor,' 'as debts of like amount are now recovered in the circuit courts of the United States, the proceeds to be paid into the treasury of the United States.' 23 St. 333.

'Sec. 6. Any person who shall bring into or land in the United States by vessel or otherwise, or who shall aid to bring into or land in the United States by vessel or otherwise, any alien not lawfully entitled to enter the United States, shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment.

'Sec. 7. The office of superintendent of immigration is hereby created and established, and the president, by and with the advice and consent of the senate, is authorized and directed to appoint such officer, whose salary shall be four thousand dollars per annum, payable monthly. The superintendent of immigration shall be an officer in the treasury department, under the control and supervision of the secretary of the treasury, to whom he shall make annual reports in writing of the transactions of his office, together with such special reports in writing as the secretary of the treasury shall require.

'Sec. 8. Upon the arrival by water at any place within the United States of any alien immigrants it shall be the duty of the commanding officer and the agents of the steam or sailing vessel by which they came to report the name, nationality, last residence, and destination of every such alien, before any of them are landed, to the proper inspection officers, who shall thereupon go or send competent assistants on board such vessel, and there inspect all such aliens, or the inspection officers may order a temporary removal of such aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. But such removal shall not be considered a landing during the pendency of such examination. The medical examination shall be made by surgeons of the marine hospital service. In cases where the services of a marine hospital surgeon cannot be obtained without causing unreasonable delay, the inspector may cause an alien to be examined by a civil surgeon, and the secretary of the treasury shall fix the compensation for such examination. The inspection officers and their assistants shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. During such inspection, after temporary removal, the superintendent shall cause such aliens to be properly housed, fed, and cared for, and also, in his discretion, such as are

delayed in proceeding to their destination after inspection. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final, unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the secretary of the treasury. It shall be the duty of the aforesaid officers and agents of such vessel to adopt due precautions to prevent the landing of any alien immigrant at any place or time other than that designated by the inspection officers; and any such officer or agent or person in charge of such vessel, who shall either knowingly or negligently land or permit to land any alien immigrant at any place or time other than that designated by the inspection officers, shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment.'

'The secretary of the treasury may prescribe rules for inspection along the borders of Canada, British Columbia, and Mexico, so as not to obstruct or unnecessarily delay, impede, or annoy passengers in ordinary travel between said countries: provided, that not exceeding one inspector shall be appointed for each customs district, and whose salary shall not exceed twelve hundred dollars per year.

'All duties imposed and powers conferred by the second section of the act of August third, eighteen hundred and eighty-two, upon state commissioners, boards, or officers acting under contract with the secretary of the treasury, shall be performed and exercised, as occasion may arise, by the inspection officers of the United States.'

'Sec. 10. All aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessel on which such aliens came; and if any master, agent, consignee, or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came, or to pay the cost of their maintenance while on land, such master, agent, consignee, or owner shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than three hundred dollars for each and every offense; and any such vessel shall not have clearance from any port of the United States while any such fine is unpaid.'

Section 11 provides for the return within one year of any alien coming into the United States in violation of law.

Section 12 saves all prosecutions and proceedings, criminal or civil, begun under any act hereby amended.

By section 13 the circuit and district courts of the United States are 'in-

vested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act;' and the act is to go into effect on April 1, 1891. 26 St. 1084-1086.
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