Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-06-16
HartWell'S Brief
THE KOREAN
Immigrant Cases

afternoons proceedings in the Korean
immigrant case. Berger VS.. Bishop. be.
fore Judge Estee in the Federal Court,
filed his plea in bar, from which the
following are extracts;
The replication admits that "a
Board purporting to be Board OF
Special Inquiry was convened to con.
slider the case of the immigration and
importation to the United States =
OF the person mentioned as an alien in
the plaintiffs complaint. and that said
Board decided that said allen should
be allowed to land"
This admission Of a decision in favor
of the allen by a de facto Board OF
Special Inquiry is enough to preclude
collateral attack upon the legality OF
the Board.
The authority Of judge de faCto
cannot be called in question collater.
ally. His title to the Office can be con.
sidered and determined only in some
proceeding instituted for that purpose.
Hence the judgment OF de facto court
or judge must be respected as valid in
all collateral proceedings, though the
official term of the person acting as
Judge had not yet begun, or had ter.
minated. or the statute authorizing
him to act or providing the mode of his
appointment Is unconstitutional, or he
is acting under an appointment by Off.
GERS having no power to make such ap-
pointment, or as the officer of sover.
eign whose authority over the terri
tory had ceased" ! Freeman on Judg-
ments, Sec. l4S. But, without waving
the claim. the defendant submits that
the evidence shows legally constitut-
ed Board of Special Inquiry to consider
and decide upon the aliens right to
land, under the provisions of the Act
Of March 3, 1903. and of Rules of the
Commissioner General of immigration
made by authority of that Act.
| The Commissioner General made no
change on the subject of Boards OF In.
quiry when he was here shortly after
the decision of the Special Board of
Inquiry In this case. On the contrary.
he approved of the constitution Of that
Board and ratified II, as well as its de-
cision in this matter Nothing could
show more plainly the Intention that
until otherwise directed the members
designated by him under the earlier
Act should continue TO be qualified for
Boards of Inquiry until further direc.
ton.
Under statutes making decisions Of
the officers final when adverse to the
alien. courts uniformly decline to re-
view such decisions, on the ground
that the jurisdiction of the executive
tribunal is exclusive. Eight Federal
cases are here cited.)
There is no limitation on the fnality
OF the decision of the Special Board of
Inquiry under the Act of March 3, 1908,
An appeal may be taken either by a
member Of the Board or by the allen
II not taken, the decision shall be
final"
The same Act gives a private person
as we'll as the United States a right
mot before granted, to sue In his own
name and for his own benefit; provid
ed, however that he shall bring suit
first. The former statute required the
proceeds of the suit to be paid into the
United States Treasury, and the Unit
ed States District Attorney conducted
the suit. Rosenberg vs.. Union Iron
Works, 1909 Fed. S44.
J This change in the law makes 1t al
1.-THE clearer that "a final decision" by
the United States Official Board shall
not only end the controversy, as far as
the United States is concerned, but
shall also bar private suits.
In closing his argument in the mat
ter, Attorney MatthewRan said that II
the plaintiff should prevail, he wanted
to know what kind of an order the
ICourt would make.
Judge Estee said the Court would
find some way of making an order
never giving a judgment yet without
being able to make an order.
Near Tiverton, Devonshire, England