United States ex rel. Simonian v. Tod, No. 199

No. 199 | 2d Cir. | Feb 4, 1924

MAYER, Circuit Judge

(after stating the facts as above). In the Gottlieb and Markarian Cases, this court held that section 3 of the Immigration Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 428914b), which is the basic act, had not been repealed. U. S. ex rel. Gottlieb v. Commissioner of Immigration, 285 F. 295" court="2d Cir." date_filed="1922-11-17" href="https://app.midpage.ai/document/united-states-ex-rel-gottlieb-v-commissioner-of-immigration-of-port-of-new-york-8828283?utm_source=webapp" opinion_id="8828283">285 Fed. 295; U. S. ex rel. Markarian v. Tod, 290 F. 198" court="2d Cir." date_filed="1923-06-04" href="https://app.midpage.ai/document/united-states-ex-rel-markarian-v-tod-8830997?utm_source=webapp" opinion_id="8830997">290 Fed. 198. The provision here applicable (quoted in full at page 297 of the Gottlieb Case) reads as follpws:

“The provision next foregoing, however, shall not apply to persons of the following status or occupations: 0 * * *Students. * * * ”

1. In addition to the two decisions, supra, of this court, it will be noted that the executive authorities, by the promulgation of General Order No. 17, supra, have thus recognized the right to admit students to this country. While this action of the executive authority is by no means conclusive, 'it is at least strange that the government now ’insists, in effect, that we shall reverse our previous holdings, when it appears that this General Order No. 17 was adopted subsequent to the two decisions of this court, supra.

2. The sole question in the case is whether oh this record these relators may be classified as “students,” within the meaning of the act. There is no suggestion in this record that the Worcester Business Institute is not a legitimate business school or institute, and there cannot be any suggestion that these relators do not intend in good faith to study at this school and then return to their home. Their uncle, as the testimony shows, is a man of substantial affairs, with a definite home and a definite business. We find nothing in any dictionary which defines “student” as “one who must be qualified to enter a recognized institution of higher education.” The usual definition of the word is “a person engaged in a course of study” (New Standard Dictionary, 1922), or “a person who is engaged in'a course of study, either general or special” (37 Cyc. 338).

We need not, however, resort solely to dictionary definitions. It is a matter of common knowledge that for many years there have been established in the United States a great many schools or colleges, so called, where business affairs and methods are taught. In these institutions there are courses in bookkeeping, various features of business procedure, and the like. Indeed, so important has become the need of an orderly understanding of such matters, before young persons enter business careers, or a better understanding after they have entered such careers, that many institutions of higher education, including some of the large universities, have business courses as a part either of their curriculum or extension work.

If the Congress had intended to give to the word “student” the narrow construction now contended for by appellant and illustrated in the part of the rule quoted, it-could very readily have added the few words necessary to express that intention. No such illiberal purpose will be attributed to the Congress. It is fair to assume that the legislative body, in excepting students with others, never contemplated that the opportunity to be educated in business affairs and methods should be denied to those who come here in good faith for that purpose. We have discussed General Order No. 17, because it may be that the order of an Executive Department, subsequent to the event, in some respects, may be considered as is a subsequent statute. Monroe Cider Vinegar & Fruit Co. v. Riordan (C. C. A.) 280 F. 624" court="2d Cir." date_filed="1922-02-20" href="https://app.midpage.ai/document/monroe-cider-vinegar--fruit-co-v-riordan-8825382?utm_source=webapp" opinion_id="8825382">280 Fed. 624, particularly at pages 631 and 632.

Rules and regulations, within the authority conferred, such as those intended to assure good faith, have the force of law; but the construction of a statute is primarily for the courts, and the erroneous construction by executive order does not make the word “student” mean something different from what the Congress intended that word to mean in this connection. We go no further than to construe the word in relation to business schools, institutes, or colleges. We readily appreciate that in respect of some subjects to call a person a “student” would be a misnomer.

Order affirmed.