shown by his letters in October, he was entitled to some further consideration or further remuneration, and if compensation was allowed the complainant corporation should have the advantage of these changes; that if the others did not desire to compensate him, then he would look for some other way of obtaining compensation. That immediately upon selling his interest, he, in connection with Sutherland and Zickrick, began the construction of another machine, which was carried on and completed, and that is the infringement which has been claimed of the patent of the complainant. The manufacture of wire fencing was begun by defendants, and has since been carried. on by them, with machines of that kind made by them. The evidence produced tends to show that all this was done under the superintendence of Mr. Pendergast, and has a tendency to show that he placed his means in the business-the means he obtained from the sale of his interest in the complainant company. Further, that he has done more than an ordinary employé working by the day would do-in hiring other men about the work, superintending the business, attempting to extend the business, and perhaps taking steps towards changing the location of the business from one place in the state to another; and that he has been continually actively engaged in these things. The mere fact that there has not been any definite contract between him and the others fixing his position as a partner in the concern is not conclusive, if he really has an interest in it. It is very plain that before his sale to the complainant company he was the owner of this patent, and the owner in fact of two of the machines, although the title to the patent was in his mother, and the title to the machines in his wife. The testimony of certain persons that he was not interested in the defendants' firm-one of these persons being a banker, and others having gone security for the firm, and others seeking perhaps an interest in the business; and that they made inquiries and found that Mr. Zickrick and Mr. Sutherland were the partners, and the only partners in the business-is only conclusive as to the fact that they were the nominal partners, and is not inconsistent with the fact that Mr. Pendergast may be a silent partner in the concern, and have an actual interest in it. Whether he has an interest or not, he has been actively engaged in the construction and operation of these new machines and in the business of producing wire fence from them, and all the defendants have been co-operating together in this.

It seems to me that this makes out a case where an injunction under the rule referred to should be allowed. This seems to be fair, reasonable, and equitable. For fear that there might be any mistake, however, I shall be inclined, if desired on the part of the defendants, to allow them to give a bond to secure to the complainant any recovery that may be adjudged to it in the suit. I say I am inclined to accept such bond, instead of issuing the injunction.

126 F.-25

In re SING TUCK.

(Circuit Court, N. D. New York. November 30, 1903.)

1. CONSTITUTIONAL LAW-EXERCISE OF JUDICIAL FUNCTIONS BY EXECUTIVE OFFICER-DETERMINING CITIZENSHIP OF IMMIGRANT.

Congress is without power, under the Constitution, to commit to the executive department of the government the right to determine finally the question of the citizenship of a person applying for admission into the United States; but under its power to exclude aliens it may properly commit the question in the first instance to the immigration officers, with plenary power to determine the facts on which citizenship depends, in doing which they act in a quasi judicial capacity, although not vested with any of the judicial power of the United States in a constitutional sense; and it is also competent to provide for an appeal from such decision to the head of an executive department, whose decision shall be final, and that if no appeal is taken the determination of the inferior officer shall be final.

2. SAME.

The Supreme Court of the United States has decided what facts must exist to constitute a Chinese person born within the United States a citizen thereof, and as the Department of Commerce and Labor is charged by the Constitution with the regulation of interstate and foreign commerce, including the coming of persons into the United States, Congress may devolve on the officers of that department the power to determine the existence or nonexistence of the facts on which the right to enter the United States depends. As such persons have a tribunal in which to be heard, a hearing on notice, with opportunity to present evidence, a judgment, and the right of appeal, all according to the law of the land, they are not denied due process of law.

8. CHINESE EXCLUSION-DETERMINING QUESTION OF CITIZENSHIP-CONCLUSIVENESS OF DECISION.

Where Chinese persons applying for admission to the United States either make no claim to citizenship therein to the immigration inspector, or, if making such claim, fail or refuse to introduce any evidence in support thereof, the burden of which is cast upon them by the statute, the adverse decision of the inspector on their right to enter, if not appealed from, is conclusive, and they are not entitled to raise the question of citizenship in the courts by proceedings in habeas corpus.

Habeas Corpus. On motion to dismiss writ.

R. M. Moore, for petitioners.

George B. Curtiss, U. S. Atty., for respondent.

RAY, District Judge. The petitioners, Chinese persons, 32 in number, apply for discharge from custody in the detention house at Malone, N. Y., on habeas corpus, alleging that they are citizens of the United States, illegally restrained of their liberty and illegally. detained by Thomas Darcy, Chinese inspector of the United States of America, at Malone, N. Y., in what is known as "The Detention House." The petition for the writ is made by the attorney for the petitioners on information and belief.

It is admitted that the petitioners are Chinese persons; that they came from China, and applied for admission into the United States at the port of Malone, N. Y., and were denied admission by the

1. Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.

executive officers of the government of the United States duly authorized to act and acting under and by virtue of the Chinese exclusion laws, on the ground that they are citizens of China and not of the United States, and not shown to be within the classes entitled to admission. The petitioners were duly notified of their right to appeal, from the decision refusing them admission, to the Secretary of Commerce and Labor of the United States. The petitioners have taken no appeal, but swear out a writ of habeas corpus in this court, alleging that they were born in the United States under circumstances making them citizens of the United States, and that, as such, they have the right to have that fact tried and determined in the courts of the United States and by the judicial department of the government, and that this question of citizenship cannot be determined by the executive officers of the government, at least so as to bind them and deprive them of their right to appeal to the courts for a due trial and determination of that question of fact; that "due process of law" guaranties them this right. When they applied for admission, 26 of the petitioners stated that they were Chinese persons, and made application for entry, but refused to answer any other questions touching their right to enter. The other petitioners, 6 in number, stated that they were Chinese persons, applied for entry into the United States, and also stated that they were born within the United States, and refused to answer any other questions. No one of the petitioners offered to show citizenship, or to comply with the law relating to the entrance of Chinese persons into the United States. The return to the writ shows the above facts, but denies that the petitioners are citizens of the United States or were born therein, and alleges, in effect, that the determination of the immigration officers and Chinese inspectors, not appealed from, is final and conclusive on the question of citizenship, as well as all others involved, and that that question was necessarily involved and adjudicated in the determination made. On the return of the proceedings under the writ, the United States. District Attorney for the Northern District of New York, intervening in behalf of the United States, and appearing in behalf of said Chinese inspector, to whom the writ was directed, moved that the writ be dismissed, and the petitioners remanded, on the following grounds: "First. This court has no jurisdiction to review the determination of the immigration officers of the United States in denying to the petitioners herein the right to enter the United States.

"Second. That the determination of the immigration officers on the question of the right of the petitioners to enter the United States is final and conclusive, no appeal having been taken therefrom to the Secretary of Commerce and Labor.

"Third. That it is not established by the petition and return that the petitioners, or any of them, have a lawful right to enter the United States.

"Fourth. That the facts set forth in the petition and return show that the petitioners have no legal right to enter the United States.

"Fifth. That the petitioners are not unlawfully detained or deprived of their liberty."

This court will take testimony and determine the question of citizenship unless the decision of the inspector, acting under the Commissioner General of Immigration and the Secretary of Commerce and Labor, not appealed from, is final and conclusive, res adjudicata,

on the question of the citizenship of the petitioners, provided that question has been properly raised and presented by the record.

The one question is, has Congress the constitutional power to confer upon the executive department, the executive officers of the government, jurisdiction to try and finally determine adversely the question whether a person seeking to enter the United States is a citizen thereof, and as such entitled to enter? Is this a political question? The other question is, have the petitioners, or either of them, placed themselves in a position to raise this question of citizenship in this court?

That Congress has full authority to confer upon the executive officers of the government plenary power to exclude and deport aliens of any nationality is settled. Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905; Wong Wing v. United States, 163 U. S. 228, 16 Sup. Ct. 977, 41 L. Ed. 140; Chae Chan Ping v. United States, 130 U. S. 581, 9 Sup. Ct. 623, 32 L. Ed. 1068; Nishimura Ekiu v. United States, 142 U. S. 651-659, 12 Sup. Ct. 336, 35 L. Ed. 1146; Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721; Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082.

It is claimed that the power to exclude and deport aliens necessarily includes the power to try and determine the question whether the person excluded or proceeded against is an alien. While Congress has the power to provide for the exclusion and deportation of aliens, and may fix the terms and conditions on which aliens may enter the United States, or remain, being here, and also has the power to confer the authority to determine whether those terms and conditions have been complied with on executive officers of the government, it does not necessarily follow that, for purposes of exclusion or deportation, the power to determine who are aliens and who are citizens may be conferred by Congress on the executive officers or executive department of the government.

The one question is whether persons conceded to be aliens shall be admitted at all, or on or under certain conditions, the existence of which conditions is matter of proof, or deported if certain conditions have not been complied with, etc., and in no sense determines or adjudges the question of citizenship, which is not in issue, while the other question is one that involves the status, liberty, and property rights of the person or persons refused admission or proceeded against. A citizen has the right to live in the country of which he is a citizen, to go and come as he pleases, even to go to and return from a foreign country if he conforms to the quarantine and other laws on the subject, and to own property and exercise many rights not belonging to an alien, unless banished as a punishment for crime. The right to refuse all aliens admission into the United States is conceded. A citizen of the United States cannot constitutionally be refused admission. Aliens found in the United States may be deported simply because they are aliens. A citizen of the United States cannot in any event lawfully be deported unless as a punishment for crime of which he has been duly convicted after a fair trial by the judicial department of the government. Nor can he be

excluded from the country. As an attribute of sovereignty, a sovereign nation, as a means of self-preservation, both in times of war and times of peace, must have, and has, the right to determine who shall be citizens thereof, and what persons, not being citizens, shall be permitted to enter or reside within its territorial limits, and also fix the terms and conditions on which such persons may remain, . and also change them at will. But, once admitted to citizenship in the United States, the person so admitted becomes a party to the Constitution, entitled to the benefits of its guaranties of protection according to and under the laws adopted in conformity thereto. At first blush it would seem clear that a person claiming to be a citizen of the United States has the right to have that alleged fact, if disputed under circumstances involving his liberty and property rights, determined in the courts and according to the established rules and forms of legal procedure. If not so, then any citizen may be deported-in effect banished from the United States-if it is charged that he is an alien, and laws excluding and deporting all aliens are enacted, on the judgment of any executive officer on whom Congress may see fit to devolve the determination of the question of expulsion, etc., and consequently that of citizenship. If no appeal is provided, such judgment would be final and conclusive, and the form or mode of trial (in the absence of legislative enactment) might depend on the mere whim or caprice of the executive officer clothed with power in the premises. Has any decision of the Supreme Court. of the United States gone to the extent of holding any such doctrine? It may be well to cite some of the cases and quote the language of the court.

In the Nishimura Case, 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146, the court said:

"It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law."

In Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082, the court said:

"The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions 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, is settled by our previous adjudications."

In Fok Yung Yo v. United States, 185 U. S. 296-305, 22 Sup. Ct. 686, 690, 46 L. Ed. 917, the court said:

"Congressional action has placed the final determination of the right of admission in executive officers, without judicial intervention, and this has been for many years the recognized and declared policy of the country."

In that case it was admitted that the petitioner was a subject of the empire of China. On his arrival at the port of San Francisco