DAVIES v. MANOLIS, 179 F. 818

SEAMAN, Circuit Judge (after stating the facts as above). For reversal of the decree of the District Court discharging the appellee, Manolis, from custody under the order and warrant of arrest issued by the Department of Commerce and Labor, this appeal is prosecuted by the United States attorney on behalf of the appellant, Immigration Inspector, against whom the writ of habeas corpus was allowed. The contentions of error in the decree are substantially as follows:

(1) That “the decision of the department * * * ordering the deportation of petitioner Manolis is final” and “not reviewable by the courts”; and (2) that the case and order are within the provisions and governed by the act of Congress approved March 3, 1903, entitled “An act to regulate the immigration of aliens into the United States” (Act March 3, 1903, c. 1012, 32 Stat. 1213-1222), and prior enactments in reference to the exclusion of contract laborers, although it is both conceded and unquestionable that the subsequent act, approved February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 898-911 [U. S- Comp.

St. Supp. 1909, p. 447]), on which the entire proceedings of the department were predicated, is not applicable to the case (as there found) of arrival in this country in August, 1906. See

section 28 of the act. 1. The power of Congress is undoubted and well settled, either to exclude aliens altogether “or to prescribe terms upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention.” Lem Moon Sing v. United States, 158 U. S. 538, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082; Japanese Immigration Case, 189 U. S. 86, 98, 101, 23 Sup. Ct. 611, 47 L. Ed. 721; Pearson v. Williams, 202 U. S. 281, 284, 26 Sup. Ct. 608, 50 L. Ed. 1029.

And this rule referred to, under which administrative powers are vested in the executive departments for enforcement of national policy thus prescribed, is alike settled in reference to other enactments administered by other departments respectively of the national government.

In each instance the “questions of fact are for the consideration and judgment” of the. department officials, and the act of Congress may make their decision final; and the general rule is equally well recognized" “that the decisions of the officers of departments upon questions of law do not conclude the courts, and they have power to grant relief to an individual aggrieved by an erroneous decision of a legal question by department officers.” School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 108, 23 Sup. Ct. 33, 47 L. Ed. 90, and cases cited.

Whether the limitations above mentioned may or may not be strictly applied to rulings of the Department of Commerce and Eabor under either act of Congress referred to and authorities cited thereupon, we are not required to determine.

We assume, therefore, without so deciding, that its alleged ruling recited in the so-called order of deportation addressed to the appellant — namely, that “the evidence clearly showed him [the appellee] to be in this country in violation of the contract labor laws,” assumed by the officer to be applicable to the case — may not be reviewable as a conclusion, either of mixed law and fact, or of law upon undisputed circumstances, if the act of 1903 governs the case. Nevertheless, final determination of the statute applicable to the case and

interpretation (to say the least) of the grant of power therein cannot rest with the executive officer under any authority cited; nor can such finality of executive decision have sanction under our system of government. Whatever may be the powers, even of judicial nature, vested in such officers for needful and

summary enforcement of the governmental policy, we believe ultimate decision of the fundamental questions above stated must remain .with the courts. The further question (under either of these acts referred to), whether the accused was granted a hearing in fact, upon the charge for which he is held in custody, is likewise open to judicial inquiry under the present writ, as settled in Chin Yow v. United States, 208 U. S. 8, 11, 28 Sup. Ct. 201, 52 L. Ed. 369. 2.

Within the limitations above assumed we proceed to the inquiry: Do the warrant, proceedings, and order exhibited in the return to the writ áfford justification for custody and deportation of the petitioner-appellee ? Review of the successive acts of Congress to regulate the immigration of alien's, inclusive of the act of 1885 and amendments thereof known as the contract labor laws, is not deemed needful’, beyond ref7 erences to certain sections of the act of 1903.

Their policy and general import are well recognized and unquestionable. • On examination of the act of 1903, we are not satisfied that the case could be brought within its provisions, even .were violation thereof charged in the warrant of arrest and proceedings instituted by the department, instead of charging violation of the act of

Section 21 of the first-mentioned act is the only provision under which proceedings for deportation are authorized “within the period of three years after landing,” and. that relates only, in express terms, to “an alien .found in the United' States in violation of this act.”

Section 2 of the act expressly defines the “classes of aliens excluded from admission” thereunder, and. no mention appears there or elsewhere in the act of “contract laborers,” within the class to which either the testimony-.or prirported ruling of the ■ department may be attributable. Moreover, it appeared (as noted in Re Ellis (C. C.) 124 Fed. 637, 641, 642), not only that the previous omnibus act of 1891 (Act March 3, 1891, c. 551, 26 Stat. 1084 [U. S. Comp.

St. 1901, p. 1294]) contained an enumeration which expressly included this class of “contract laborers,” thus omitted from the revision of 1903, but that before the passage of the act of 1903 an enumeration of like effect was contained in the bill and was stricken out in the course of adoption. Without resting our conclusion for affirmance, however, on such seeming insufficiency of the act cited by counsel for detention of appellee, we are of opinion that no support for the alleged department warrants or order is allowable under feuch act, in any view of its provisions.

The warrant of arrest, under which the proceedings were instituted, conducted, and concluded, charges alone “violation of the act of Congress approved February 20, 1907,” with specification which appears to be within the express terms thereof (vide

section 2), as a “contract laborer.” In the proceedings thereunder, before the inspector — which was the only hearing granted — the proof established, and the inspector so certified the fact to be, that the accused had arrived in this country in August, 1906, long prior to this enactment; and motion was made on behalf of the accused, at the conclusion of such hearing for his discharge accordingly.

The inspector withheld ruling upon such motion, stating in his report: “I refrain from making any recommendation and forward the record of the hearing to the department for a decision.” Whether the accused was thereupon released or detained appears only from the subsequent (so-called) “order of deportation,” which recites that he “has been released upon his own parole into the custody of Chris Deckas and Gust Manolis (brother of the alien) who conduct a pool room and lunch room in the city of Des Moines,” and directs “that he be taken into custody * * * for deportation.” Under this conceded state of the record, with no hearing granted by the department in any form for violation (as now alleged) of the act of 1903, we believe no sanction appears for the order or warrant of deportation, even on the assumption, (

a) that such act authorized deportation for the cause stated in the order, and (

b) that the testimony reported by the inspector disclosed violation of the contract labor laws. Whatever were the subsequent proceedings or conclusions in the department, they were ex parte, and the final orders for rearrest and deportation were without hearing and unauthorized. In such case the petitioner-appellee was “entitled to a writ of habeas corpus,” as he was arbitrarily “denied such hearing and such opportunity to prove his right to enter the country as the statute meant that he should have.” Chin Yow v. United States, 208 U. S. 8, 11, 28 Sup. Ct. 201, 202 (52 L. Ed. 369). The decree of the District Court, accordingly, is affirmed.