| Haw. | Mar 17, 1897
OPINION OF THE COURT BY
A petition by Tatsn and 847 others for a writ of habeas corpus, signed by S. M. Ballou (an attorney of this Court) “in behalf of the above named petitioners,” and sworn to by Mr. Ballou was presented to the Chief Justice on the 10th March and a writ was ordered to be issued, returnable before the Supreme Court on the 15th, the day of the opening of the term. The petition alleges as follows:
“That on or about the 27th day of February, A. D. 1897, they arrived in Honolulu, Republic of Hawaii, on the steamship Shinshiu Maru, from Kobe, Empire of Japan, intending to locate and remain in the Republic of Hawaii, being as they are informed and believe and so charge the fact to be, qualified to enter and to locate in the said Republic of Hawaii under the treaty now existing between the Emperor of Japan and the Republic of Hawaii, and under the laws of the Republic of Hawaii.
“And your petitioners severally represent that they are not idiots, insane persons, paupers, vagabonds, criminals, fugitives from justice, persons suffering from a loathsome or dangerous contagious disease, stowaways, vagrants, nor persons without visible means of support.
“xAnd your petitioners further allege that they severally have bona fide possession of not less than fifty dollars in money, and other visible means of support, and that upon their arrival in Honolulu as aforesaid they were severally examined by a duly authorized inspector touching their object and purpose in coming to the Hawaiian Islands, and their means of support, and then and there exhibited to said inspector money of the value of*703 not less than fifty dollars, which money was then and there in their bona fide possession.
. “And your petitioners further allege that ever since their arrival in the Republic of Hawaii as aforesaid they have been and are now unjustly restrained and deprived of their several liberties, which, as they are informed and believe, and so charge the fact to be, they are entitled to enjoy under and by virtue of the said treaty now existing between the Emperor of Japan and the Republic of Hawaii, by Jas. B. Castle, Collector General of Customs, and by his deputies, servants and agents, under i.he pretence that your petitioners are vagrants and persons without visible means of support, and other pretences to your petitioners unknown.
“And your petitioners further allege that the said Jas. B. Castle threatens to deport your petitioners and to forcibly send them to Japan by the steamship Shinshiu Mara, and will so deport your petitioners unless so restrained by an order of this court, whereby your petitioners are threatened with immediate and irreparable injury.” (Then follows the usual prayer.)
The return made by the Collector General of Customs, among other things, alleges that “it does not appear on the petition that S. M. Ballou had any authority to petition for any of the said persons for whom a writ of habeas corpus has been asked.” The traverse to the return, also signed by Mr. Ballou, alleges that “all access to said petitioners and all communication from them being purposely shut off by respondent, no direct authorization from them was possible, but that S. M. Ballou being retained with W. A. Kinney by friends of the petitioners on shore to bring this suit, has assumed to act in their behalf as aforesaid in accordance with law.”
It will be seen that the petitioners are the Japanese immigrants in question, and yet they do not sign nor swear to the petition. If the petition is intended to be Mr. Ballou’s on behalf of the Japanese who are alleged to be restrained of their liberty, he should have made himself the petitioner. Our statute allows a petition for the issuance of a writ of habeas corpus to be
The failure to state the fact that the person for whom relief is sought is under disability through coercion to make or authorize the application, would not be sufficient ground, after the issuance of the writ, upon which to dismiss the writ or remand the party alleged to be wrongfully restrained, yet it is desirable to put this allegation in the petition. The writ having issued, the presumption is that the Justice was satisfied that either the application was authorized or that there was reasonable ground to suspect that the persons in whose behalf the application was made were suffering involuntary and wrongful restraint.
The return of the Collector General is as follows:
“How comes James B. Castle, Collector General of Customs of the Hawaiian Islands, and for a return to the writ served upon him respectfully shows to this honorable court as follows:
“First. He admits that persons answering to the names set forth in said petition and in said writ were in his custody at the times therein alleged, and he verily believes them to be the persons so described; and he here brings them and each of them before this honorable court, as the said writ directed. And the said respondent hereby shows the cause of the detention of the said petitioners to be as follows:
*705 “1. That they are natives of the Empire of Japan, and aliens and foreigners.
“2. That they arrived in the port of Honolulu on hoard a steam vessel called the ‘Shinshiu Maru,’ on or abont the first day of March, 1897. That said petitioners were removed to the quarantine station for the purpose of performing the quarantine duties, and that while there they were subjected to the inspection of Erank B. McStocker, Esq., deputy of the Collector General of Customs, for the purpose of ascertaining their qualification to enter this country. That upon such examination the said E. B. McStocker decided that the petitioners, each and every one of them, were not qualified to land in this country-That said E. B. McStocker has reported to him that the petitioners, each and all of them, are aliens, and that none of them possess the qualifications' required by law to authorize them to land in the Hawaiian Islands.
“Whereupon it was decided that said petitioners, each and all of them, were not entitled to enter the Hawaiian Islands; and that they should be held to await the return of the steamer ''hat they might be deported.”
A lengthy traverse to the return was presented for the petitioners by Mr. Ballou, which substantially denies that any legally conducted examination of the right of these Japanese to land was made by the Deputy Collector, or that any legal decision thereon was made. It is claimed in argument that the court should inquire into the proceedings in order to ascertain if the statute relating to the landing of aliens in the Hawaiian Islands (Act 66 of the Laws of 1894) was complied with. Counsel urge that the decision alleged in the return is not final because it was not communicated to these Japanese, and therefore they have had no opportunity to appeal therefrom to the Collector General as by the statute allowed. They also claim that the decision is not binding because no opportunity was allowed these Japanese of consulting counsel, and that this was in derogation of their rights under the treaty of Hawaii with Japan, which provides that Japanese subjects “may remain and reside in” the
There being nothing in the treaty to invalidate the Act itself, or the action taken by the Deputy Collector, it remains to consider whether the statute has been complied with. Upon this point we are greatly assisted by the decisions of the Supreme Court of the United States, made under an Act of Congress pássed on March 3, 1891, from which our statute was for the most part taken. Both statutes exclude certain classes of undesirable persons, and confer upon certain executive officers the duty of inspecting all alien passengers and deciding upon their right to land in the respective countries, that is, the authority to pass upon the question whether they are within the prohibition.
In Nishimura Ekiu v. United States, 142 U.S. 651" court="SCOTUS" date_filed="1892-01-18" href="https://app.midpage.ai/document/nishimura-ekiu-v-united-states-93243?utm_source=webapp" opinion_id="93243">142 U. S. 651, the -court say “that the legislative body may, if it sees fit * * * authorize the courts to investigate, and ascertain the facts on
“By Section 8 (corresponding to Sec. 3 of the Hawaiian statute), ‘the proper inspection officers’ are required to go on board any vessel bringing alien immigrants and to inspect and examine them, and may for this purpose remove and detain them on shore, without such removal being considered a landing; and ‘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;’ ‘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;’ and the Secretary of the Treasury may prescribe rules for inspection along the borders of Canada,
“It was also urged that Hatch’s (the inspector’s) proceedings did not conform to Section 8 of the Act of 1891, because it did not appear that he took testimony on oath, and because there was no record of any testimony or of his decision. But the statute does not require inspectors to take any testimony at all, and allows them to decide on their own inspection and examination the question of the right of any alien immigrant to land. The provision relied on merely empowers inspectors to administer oaths and to take and consider testimony, and requires only testimony so taken to be entered of record.
“The decision of the inspector of immigration being in conformity with the Act of 1891, there can be no doubt that it was final and conclusive against the petitioner’s right to land in the United States. The words of Section 8 are clear to that effect, and were manifestly intended to prevent the question of an alien immigrant’s right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed in the courts or otherwise, save only by appeal to the inspector’s official superiors, and in accordance with the provisions of the Act.”
In Lem Moon Sing v. United States, 158 U.S. 538" court="SCOTUS" date_filed="1895-05-27" href="https://app.midpage.ai/document/lem-moon-sing-v-united-states-94236?utm_source=webapp" opinion_id="94236">158 U. S. 538, the court say, “the contention is that while, generally speaking, immigration officers have jurisdiction under the statute to exclude an alien who is not entitled under some statute or treaty to come into the United States, yet if the alien is entitled, of right, by some law or treaty, to enter this country, but is nevertheless excluded by such officers, the latter exceed their jurisdiction; and their illegal action, if it results in restraining the alien of his liberty, presents a judicial question for the decision of which the courts may intervene upon a writ of habeas corpus.
“That view, if sustained, would bring into the courts every case of an alien who claimed the right to come into the United States under some law or treaty, but was prevented from doing so by the executive branch of the government. This would
See also Wong Wing v. United States, 163 U.S. 228" court="SCOTUS" date_filed="1896-05-18" href="https://app.midpage.ai/document/wong-wing-v-united-states-94479?utm_source=webapp" opinion_id="94479">163 U. S. 228, and Fong Yue Ting v. United States, 149 U.S. 698" court="SCOTUS" date_filed="1893-05-15" href="https://app.midpage.ai/document/fong-yue-ting-v-united-states-93665?utm_source=webapp" opinion_id="93665">149 U. S. 698.
Ev this reasoning it appears that tbe action of tbe "Deputy Collector is not judicial, but executive, and also that tbe decision is final and conclusive and cannot be reviewed by tbe court.
These principles have been repeatedly declared by tbe highest court of tbe United States, and we have no reason to doubt their correctness. They may be summed up as follows: “When tbe law has confided to a special tribunal tbe authority to bear and determine certain matters in tbe course of its duties, tbe decision of that tribunal within tbe scope of its authority is conclusive upon all others.” U. S. v. Chung See, 76 Fed. Rep. 954.
It is contended that tbe decision of tbe Deputy Collector of Customs is not final because not announced to tbe petitioners, so that they might appeal. Having held that tbe decision refusing to admit them to land is an executive function, formal notice of tbe decision to tbe petitioners is not essential to its validity. We as a court do not know whether tbe decision may not have been announced to them by this time. Tbe failure to announce tbe decision is not ground to discharge them from tbe restraint they are undergoing. In a case, In re Chin Yuen Sing, 65 Fed. Rep. 571 (1894), a United States Circuit Judge held that tbe Act of 1891 “left nothing for tbe court to inquire into, save only whether relator is an alien, and whether tbe Collector has made a decision. On this latter point, tbe return, in which be states that be has decided adversely to admission, is conclu
Tbe decision of tbe Deputy Collector cannot be inquired into by tbis court.
Tbe petitioners are remanded.