United States ex rel. Duner v. Curran

HAND, Circuit Judge (after stating the facts as above). The chief question is whether section 4 (d) of the Act of 1924 (Comp. St. Supp. 1925, § 4289¾b) applies to the wife and children of a minister or professor who entered the country before July 1, 1924, the date when it went into effect. The section is in two parts: First, it exempts from the quota a minister “who continuously for at least two years * * * fias been, and who seeks to enter the United States solely for the purpose of, carrying on the vocation,” etc. Second, it exempts “his wife, * * * if accompanying or following to join him.” Grammatically the logic is inescapable; “his” and “him” refer to the minister or professor, who is exempted by the first part of the section. It is as though the section read: “We exempt the minister, and the wife of the minister whom we so exempt.” But the distinction is meaningless as matter of policy. We can see no possible difference in the desirability of the family, whether its head entered before or after July 1, 1924, so long as he answers the prescribed description. We, of course, agree that whenever he enters he must already have practiced his profession for two years and must have entered solely to carry it on, but beyond that we are not disposed to press grammar at the expense of the plain purpose. Therefore, while not all ministers who had lawfully entered under the broader statutes might bring in their families, those [40] might who would have had the same right upon a later entry. This does not give a retroactive scope to the statute, since it allows no family to enter which arrived before July 1, 1924. We think that the pronouns “his” and “him” may, without too great violence, be taken as incorporating the description of the familial head only in terms of his qualifications to enter, and not of his right to do so. The occasion of the section strongly corroborates what we have inferred from its text. The statute was passed on May 26, 1924, at a time when the status of such a family was before the Supreme Court, which indeed decided Commissioner v. Gottlieb, 265 U. S. 310, 44 S. Ct. 528, 68 L. Ed. 1031, on that very day. It was certainly intended to lay any doubts which were known to exist, and which that decision proved to be well founded. After the decision, .by resolution Congress allowed all aliens to remain who had entered on the faith of the decisions so reversed or overruled. Therefore the situation was that all who had entered could stay, and all might in the future enter if the head of the family should himself enter after July 1, 1924. But if the appellant be right, none may enter whose head was already here, though he were within the more restricted class than those allowed to remain by the resolution. He must leave and come back again. It seems to us not unreasonable to describe such a result as fantastic, and such a purpose is incredible to impute to Congress. We acknowledge that our construction in fact involves substituting other words in place of those used, and we shall seek no locutions to disguise the liberty taken or the risk assumed. We can appeal, however, to the universal and ancient practice of courts in dealing with any kind of words. Their purpose may appear so clearly as to escape defeat, in spite of its imperfect expression, and though other words must be imputed to the author. In saying that we are thus ascertaining the author’s intent we speak somewhat elliptieally. That intent as a fact in his mental life is irrelevant; his words are taken to mean what they mean in public use. But if the contrary expression be not too explicit, the disclosed purpose may prevail to cover an unforeseen event, which the author would certainly have comprised by proper words, had it been presented to him. We can see no useful purpose in denying that this is what takes place in such cases, and is what we are doing here. Immigration laws have repeatedly been so treated. Chew Heong v. U. S., 112 U. S. 536, 5 S. Ct. 255, 28 L. Ed. 770; Holy Trinity Church v. U. S., 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; Lau Ow Bew v. U. S., 144 U. S. 47, 12 S. Ct. 517, 36 L. Ed. 340; Tsoi Sim v. U. S., 116 F. 920, 54 C. C. A. 154 (C. C. A. 9). It is quite true that in Commissioner v. Gottlieb, supra, the Supreme Court found the language of the act too explicit to allow the same result. But one case can scarcely be a precedent for another on a question of interpretation, where the result depends upon the utterance as a whole, its occasion, and its precise expression. Naturally we are especially solicitous to follow whatever may be the implications of that decision, but with the best possible will we cannot see that it gives us any guidance here, even though its subject-matter was so closely akin. We conclude, therefore, that section 4 (d) exempted the family of a minister who had himself entered before it went into effect, and the conclusion of the District Court is affirmed on that point. As to the exclusion of the mother, Beila, that she might act as an attendant upon the child, Channa, the question is apparently moot. At least we are told that the little girl has gone back with a satisfactory substitute. We decline, therefore, to decide whether the District Court has the power to interfere with the discretion of the Secretary or Commissioner under section 18 of the Basie Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼j). Since Beila is admissible per se, any ground for her exclusion has now disappeared. Michel Duner must be excluded; he falls within the language of section 3 of the Act of 1917 (section 4289¼b) as a person “found to be and * * * certified by the examining surgeon as being * * * physically defective.” Into that finding and certificate we cannot inquire. U. S. ex rel. Feuerstein v. Tod, 296 F. 127 (C. C. A. 2); Tambara v. Weedin, 299 F. 299 (C. C. A. 9). Assuming for argument that we may consider whether the defect was such as might affeet his ability to earn a living, we have no evidence to contradict the finding of the surgeon. The question was indeed involved in U. S. ex rel. Engel v. Tod, 294 F. 820 (C. C. A. 2), but was not discussed, and that case is not to be understood as involving a holding to the contrary, as appears from the later case of U. S. ex rel. Feuerstein v. Tod, supra. Finally, we have the question .whether [41] the finding should stand that all the children are likely to become a public charge. The record is destitute of the slightest evidence justifying such a conclusion. Plainly it cannot be because they are of tender years. It is true that by the death of their parents they might become such, but so would any children of like age. It is impossible that the statute meant to exclude all such children. Whatever may have been the decisions before Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114, that case settled the rule that there must be some evidence to support that finding as well as any other. The transposition of the phrase in section 3 has nothing to do with that question. Whatever it now means, it must be still supported by evidence. Drastic as are the powers of the board, they cannot entirely escape all judicial review by the use of that phrase. Order affirmed as to Beila, Golde, Hudes, and Moshe Duner; order reversed as to Michel Duner.