Chung Fook v. White

440

Statement of the Case.

eral law applicable as fully to suits in the state courts as to those prosecuted in the courts of the United States.'

As the writ of error from this Court was improvidently allowed, the case must be transferred to the Circuit Court of Appeals for the Second Circuit. Section 238(a) of the Judicial Code, Act of September 14, 1922, c. 305, 42 Stat.

837.

Case Transferred.

No. 299. Argued February 26, 1924.-Decided April 7, 1924.

The proviso of § 22 of the Immigration Act of February 5, 1917, citizen, married to him under which the wife of a "naturalized" after his naturalization and sent for by him, may be admitted without detention for treatment in hospital though found to be affected with a contagious disorder, cannot be extended by judicial construction to include the wife of a native born citizen. P. 445.

287 Fed. 533, affirmed.

CERTIORARI to a judgment of the Circuit Court of Ap- peals which affirmed a judgment of the District Court denying a petition for a writ of habeas corpus.

Mr. Jackson H. Ralston, with whom Mr. G. W. Hott was on the brief, for petitioner.

1Cases like McNeill v. Southern Ry. Co., 202 U. S. 543, and Wef- ern Union Telegraph Co. v. Andrezws, 216 U. S. 165, in which questions of the immunity of state officers from suit are considered by thi Court on direct appeal under § 238, come here by that method be- cause of the constitutional question involved. Compare Illnois Cen- tral R. R. Co. v. Adams, 180 U. S. 28, 37, 38.

Opinion of the Court.

Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck and Mr. Harvey. B. Cox, Special Assistant to the Attorney General, were on the brief, for respondent.

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

Chung Fook is a native-born citizen of the United States. Lee Shee, his wife, is an alien Chinese woman, ineligible for naturalization. In 1922 she sought admis- sion to the United States, but was refused and detained at the immigration station, on the ground that she was an alien, afflicted with a dangerous contagious disease.

No question is raised as to her alienage or the effect and character of her disease; but the contention is that, never- theless, she is entitled to admission under the proviso found in § 22 of the Immigration Act of February 5, 1917,

c. 29, 39 Stat. 891. The section is copied in the margin.'

A petition for a writ of habeas corpus was denied by the Federal District Court for the Northern District of Cali- fornia, and upon appeal to the Circuit Court of Appeals, the judgment was affirmed. 287 Fed. 533.

The pertinent words of the proviso are: "That if the person sending for wife or minor children is naturalized,

I " Sec. 22. That whenever an alien shall have been naturalized, or shall have taken up his permanent residence in this country, and thereafter shall send for his wife or minor children to join him, and said wife or any of said minor children shall be found to be affected with any contagious disorder, such wife or minor children shall be held, under such regulations as the Secretary of Labor shall pre- scribe, until it shall be determined whether the disorder will be easily curable or whether they can be permitted to land without danger to other persons; and they shall not be either admitted or deported until such facts have been ascertained; and if it shall be determined that the disorder is easily curable and the husband or father or other responsible person is willing to bear the expense of the treatment, they may be accorded treatment in hospital until

443

Opinion of the Court.

a wife to whom married or a minor child born subsequent to such husband or father's naturalization shall be ad- in hospital, mitted without detention for treatment ." The measure of the exemption is plainly stated * . and, in terms, extends to the wife of a naturalized citizen only.

But it is argued that it cannot be supposed that Con- gress intended to accord to a naturalized citizen a right and preference beyond that enjoyed by a native-born citizen. The court below thought that the exemption from detention was meant to relate only to a wife who by marriage had acquired her husband's citizenship, and not to one who, notwithstanding she was married to a citizen, remained an alien under § 1994, Rev. Stats.: "Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully natu- ralized, shall be deemed a citizen." To the same effect, see Ex parte Leong Shee, 275 Fed. 364. We are inclined to agree with this view; but, in any event, the statute plainly relates only to the wife or children of a naturalized citizen and we cannot interpolate the words "native-born citi- zen" without usurping the legislative function. Corona Coal Co. v. United States, 263 U. S. 537; United States

v. First National Bank, 234 U. S. 245, 259-260; St. Louis,

Iron, Mountain, & Southern Ry. Co. v. Taylor, 210 U. S.

cured and then be admitted, or if it shall be determined that they can be permitted to land without danger to other persons, they may, thereupon be admitted: Provided, That if otherwise admissible, if the person sending for wife or minor children is naturalized, a wife to whom married or a minor child born subsequent to such husband or father's naturalization shall be admitted without detention for treatment in hospital, and with respect to a wife to whom married or a minor child born prior to such husband or father's naturaliza- tion the provisions of this section shall be observed, even though such person is unable to pay the expense of treatment, in which case the expense shall be paid from the appropriation for the enforcement of this Act."

446

Statement of the Case.

281, 295; Amy v. Watertown, 130 U. S. 320, 327. The words of the statute being clear, if it unjustly discriminates against the native-born citizen, or is cruel and inhuman in its results, as forcefully contended, the remedy lies with Congress and not with the courts. Their duty is simply to enforce the law as it is written, unless clearly unconstitutional.

Affirmed.

No. 240. Argued February 25, 1924.--Decided April 7, 1924.

discharge its trust with good faith and fairness, and treaties made with them should be liberally construed. P. 448.

2. The treaty made in 1855 with the Quileute and other Indians,

by which they surrendered broader claims for a limited reserva- tion, provided for money "to clear, fence, and break up a sufficient quantity of land for cultivation," and authorized the President to assign "lands" in severalty to the Indians for permanent homes.

Held, that timbered lands were not intended to be excluded from assignment. Id.

3. The General Indian Allotment Act should be construed when

possible in harmony with previous Indian treaties. Id.

4. The General Allotment Act in limiting allotments to "eighty acres

of agricultural or one hundred and sixty acres of grazing land to any one Indian," was not meant to preclude an allotment of timbered lands, capable of being cleared and cultivated, but simply to differentiate, in the matter of area, between lands adaptable to agricultural uses and lands valuable only for grazing purposes.

284 Fed. 827, affirmed.

APPEAL from a decree of the Circuit Court of Appeals which affirmed a decree of the District Court for the plaintiff and appellee, Payne, in his suit to determine his right to an allotment of land in an Indian Reservation.