Other sections provide penalties by escheat and imprisonment for violation of section 2.

The treaty between the United States and Japan (37 Stat. 1504-1509) does not confer upon Japanese subjects the privilege of acquiring or leasing land for agricultural purposes. Terrace v. Thompson, Ante, 197.

Appellants contend that the law denies to ineligible aliens equal protection of the laws secured by the 14th Amendment, because it forbids them to lease land in the state, although the right to do so is conferred upon all other aliens. They also contend that the act is unconstitutional because it deprives Porterfield of the right to enter into contracts for the leasing of his realty and deprives Mizuno of his liberty and property by debarring him from entering into a contract for the purpose of earning a livelihood in a lawful occupation. This case is similar to Terrace v. Thompson, supra. In that case the grounds upon which the Washington Alien Land Law was attacked included those on which the California act is assailed in this case. There the prohibited class was made up of aliens who had not in good faith declared intention to become citizens. The class necessarily includes all ineligible aliens, and, in addition thereto, all eligible aliens who had failed so to declare. In the case now before us the prohibited class includes ineligible aliens only. In the matter of classification, the states have wide discretion. Each has its own problems, depending on circumstances existing there. It is not always practical or desirable that legislation shall be the same in different states. We can not say that the failure of the California legislature to extend the prohibited class so as to include eligible aliens who have failed to declare their intention to become citizens of the United States was arbitrary or unreasonable. See Miller v. Wilson, 236 U. S. 373, 383, 384, and cases cited.

Our decision in Terrace v. Thompson, supra, controls the decision of all questions raised here.

The order of the District Court is affirmed.

4. DECISION BY JUDGE LOWELL, OCTOBER 17, 1924

District Court of the United States, District of Massachusetts

Civil No. 2759. In re Chiu Shee

OPINION

(October 17, 1924)

LOWELL, J.: Return on a writ of habeas corpus to obtain the release of a person held for deportation by the immigration authorities, who decided that the immigration act of May 26, 1924, prohibited her from landing. The case is properly before the court, as it involves the interpretation of a law on which the decision of the immigration officials is not final. (Gegiow v. Uhl, 239 U. S. 3.)

These proceedings raise the question whether a Chinese woman born of foreign parents, who is the wife of an American citizen, is prevented by the recent immigration act from entering this country, thus changing the settled law which allows such persons to join their husbands here (Tsoi Sim v. U. S., 116 F. R. 920), though not to be naturalized (Fong Yue Ting v. U. S., 149 U. S. 698). A casual reading of the statute would seem to show that it has this result, but if we adopt the attitude toward such legislation of the Supreme Court of the United States in the leading case of Holy Trinity Church v. U. S. (143 U. S. 457), and consider the circumstances attending the passage of the act and the evils it was intended to prevent, we shall come to a contrary conclusion.

It is well known that the evil aimed at by this act was the presence in the United States of a large number of aliens who were not desirous of adopting our customs, but preferred to follow their old ways and were thus not likely to be assimilated with the rest of the population and become desirable citizens. The periodicals and newspapers have pointed out the dangers of such a situation, and have often figuratively expressed their fears by the prophecy that an ignorant mass of foreigners could not be refined into good material in the "melting pot" of American civilization. We have also been treated to learned

dissertations on the impossibility of combining brachycephalic and dolichocephalic races. This subject is interesting to those who understand it, if such there be, but not relevant to the present discussion except as showing how deeply the danger of unlimited immigration had impressed the public mind.

The result desired by the passage of the act would not be furthered by prohibiting a wife from joining her husband who is a citizen of the United States by virtue of his birth. (U. S. v. Wong Kim Ark, 169 U. S. 649.) It would make him discontented with his American citizenship, as it would deprive him of the society of his wife, to which he is entitled by law. (Tsoi Sim v. U. S., 116 F. R. 920 and cases cited.)

A careful scrutiny of the provisions of the act will show that they are inconsistent with one another. Section 4, relating to nonquota immigrants, provides:

"When used in this act the term "nonquota immigrant means (a) an immigrant who is the unmarried child under eighteen years of age, or the wife of a citizen of the United States who resides therein at the time of the filing of a petition under section 9 '(which provides for the admission of such persons, who are not reckoned in the quota)'; (b) an immigrant returning from a temporary visit abroad; (c) an immigrant with his wife and children if he were born in Central or South America or certain of the West Indies; (d) an immigrant, with his wife and children, who is a minister or a professor; or (e) a student."

Section 13, on which the immigration officials base their decision, provides: "(c) No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b), (d), or (e) of section 4, or (2) is the wife, or the unmarried child under eighteen years of age of an immigrant admissible under such subdivision (d) and is accompanying or following to join him, or (3) is not an immigrant as defined in section 3."

It will be noticed that subdivision (a) of section 4, which relates to the wives of American citizens, was not included among the exemptions. On this omission the assumption is based that Congress expressly forbade the entry of the wife of an American citizen if she could not be naturalized. The assumption rests on an insecure foundation and arises from a literal construction of the act without seeking to ascertain its intention. The result of such a construction would be that Congress showed itself more solicitous for the welfare of an alien minister or professor (whose wife is allowed to enter, sec. 13(c)) than for that of American citizens. Such a result would be absurd, and we are told by the highest authorities that an act of Congress should not be so construed as to lead to absurdities. (Lau Ow Bew v. U. S., 144 U. S. 47; Holy Trinity Church v. U. S., 143 U. S. 457, and cases cited.)

Nor is such a construction necessary. Section 4 (a) standing alone would allow a Chinese wife of an American citizen not only to be admitted, but to be admitted in excess of the quota. The omission of subdivision (a) of section 4 from the provisions of section 13 arose not from a settled purpose of Congress to exclude such a wife, but from the fact that in considering section 13 Congress had only aliens in mind and did not realize that the section as passed diminished the rights of American citizens, already carefully safeguarded by section 4 (a). The reason why this inconsistency was overlooked was that the report of the House committee stated specifically that wives of American citizens were exempted, and the chairman of that committee (Mr. Johnson) in the debate in the House emphasized this feature of the bill. (Congressional Record, vol. 65, No. 93, p. 5851.) The discrepancy between section 4 (a) and section 13 (c) is thus reconciled by construing the latter provision as applying only to aliens who are not related to American citizens.

We have seen by a careful study of the statute in the light of its attending circumstances that it allows Chinese wives to enter this country. As was pointed out in the Holy Trinity Church case, this construction of the act is not statute making by the court, but is the result of a critical analysis of its provisions in order to arrive at the legislative intent. Judge Neterer, in an opinion filed September 23, 1924, of which I have been given a copy, has held that the wives of Chinese merchants and the Chinese wives of American citizens were not excluded by the immigration act of 1924. I follow this decision in so far as it relates to the case at bar.

The conclusion arrived at is supported by the decisions allowing the wives of Chinese merchants to accompany their husbands, though they were not expressly allowed to do so by the terms of the statutes. (Re Chung Toy Ho., 42, F. R. 398; U. S. v. Mr. Gue Lim, 176 U. S. 459.)

Compare also the cases relating to the contract labor clause of immigration laws, where the courts have interpreted the statutes very liberally in favor of immigrants: Holy Trinity Church v. U. S., 143 U. S. 457; U. S. v. Laws, 163 U. S. 258; U. S. v. Gay, 95 F. R. 226; Kuwabara v. U. S., 260 F. R. 104; U. S. v. Union Bank of Canada, 262 F. R. 91; Ex parte Aird, 276 F. R. 954; Ex parte Gouthro, 296 F. R. 506; and the cases holding that Chinese merchants need not register nor procure certificates: Lau Ow Bew v. U. S., 144 U. S. 47; Tom Hong v. U. S., 193 U. S. 517; and see Lee Kan v. U. S., 62 F. R. 914.

The very recent case of Chung Fock v. White, 264 U. S. 443, is not inconsistent with the result above reached. It related to a minor detail of an immigration act, and while it may seem somewhat inconsistent with the cases relating to Chinese merchants, to which we have above referred, it was not intended to affect those decisions, nor does it throw any doubt on the validity of the reasoning in the Holy Trinity Church case, which was not mentioned in the opinion. Chiu Shee may be discharged.

APPENDIX E

AREA AND DENSITY OF POPULATION OF NATIONS POSSESSING TERRITORY SUSCEPTIBLE ΤΟ INCREASE IN POPULATION THROUGH IMMIGRATION

[Compiled from Table No. 460, Statistical Abstract of the United States, 1922, page 727]

APPENDIX F

TEXT OF THE IMMIGRATION ACT OF 1924

[PUBLIC NO. 139-68TH CONGRESS]

[H. R. 7995]

AN ACT To limit the immigration of aliens into the United States, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the Immigration act of 1924."

66

IMMIGRATION VISAS

SEC. 2. (a) A consular officer upon the application of any immigrant (as defined in section 3) may (under the conditions hereinafter prescribed and subject to the limitation prescribed in this Act or regulations made thereunder as to the number of immigration visas which may be issued by such officer) issue to such immigrant an immigration visa which shall consist of one copy of the application provided for in section 7, visaed by such consular officer. Such visa shall specify (1) the nationality of the immigrant; (2) whether he is a quota immigrant (as defined in section 5) or a non-quota immigrant (as defined in section 4); (3) the date on which the validity of the immigration visa shall expire; and (4) such additional information necessary to the proper enforcement of the immigration laws and the naturalization laws as may be by regulations prescribed.

(b) The immigrant shall furnish two copies of his photograph to the consular officer. One copy shall be permanently attached by the consular officer to the immigration visa and the other copy shall be disposed of as may be by regulations prescribed.

(c) The validity of an immigration visa shall expire at the end of such period, specified in the immigration visa, not exceeding four months, as shall be by regulations prescribed. In the case of an immigrant arriving in the United States by water, or arriving by water in foreign contiguous territory on a continuous voyage to the United States, if the vessel, before the expiration of the validity of his immigration visa, departed from the last port outside the United States and outside foreign contiguous territory at which the immigrant embarked, and if the immigrant proceeds on a continuous voyage to the United States, then, regardless of the time of his arrival in the United States, the validity of his immigration visa shall not be considered to have expired.

(d) If an immigrant is required by any law, or regulations or orders made pursuant to law, to secure the visa of his passport by a consular officer before being permitted to enter the United States, such immigrant shall not be required to secure any other visa of his passport than the immigration visa issued under this act, but a record of the number and date of his immigration visa shall be noted on his passport without charge therefor. This subdivision shall not apply to an immigrant who is relieved under subdivision (b) of section 13, from obtaining an immigration visa.

(e) The manifest or list of passengers required by the immigration laws shall contain a place for entering thereon the date, place of issuance, and number of the immigration visa of each immigrant. The immigrant shall surrender his immigration visa to the immigration officer at the port of inspection, who shall at the time of inspection indorse on the immigration visa the date, the port of entry, and the name of the vessel, if any, on which the immigrant arrived. The immigration visa shall be transmitted forthwith by the immigration officer in charge at the port of inspection to the Department of Labor under regulations prescribed by the Secretary of Labor.