The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1905-05-19
SAYS DECISION
IS APPALLING
Justice Brewer Is Author
of Searching Dissenting
Opinion in Ju Toy Case
HABEAS CORPUS DENIED
Day and Peckham Agree
With Him That Constitu-
tion Has Been Violated

sSuch n decision is, to my mind, APP
ralling. III this be not a star
chamber proceeding OF the most strin-
gent sort, what more Is necessary to
make Ii ones 1t must be born
I'm mind that the petitioner has been
judiciaIly determined to be n free born
American citizen, and the contention of
the Government, sustained by the judg-
ment of this court, Is that n citizen is
guilty of NO crime-for IL Is no crime
for a citizen to come back to his ma
tive lnnd-must by the action of a min
isterinI officer be punished by deporta-
ton and Punishment without trial by
jury and without judicial examination"
From the dissenting opinion of JUS
tice Brewer OF the United States Su-
preme Court. written for himself and
Justices Day and Peckham. who con-
CURED with him.
The foregoing are the startling extracts
from the dissenting opinion of one of the
ablest jurists in the United States and two
of his associates His remarks were called
forth by the opinion of the United States
Supreme Court in the case of the United
States VS.. Ju Toy. AS related in the
opinion of the court. Ju Toy sought adj
mission at this port on the ground that he
was a native citizen of the United States.
The local immigrant officials decided that
his claim was not well founded and denied
him a landing. On the appeal the Secre-
tary of the Department of Commerce and
Labor sustained the action of the local
immigrant. officials. Then Ju Toy was
granted a writ of habeas corpus by the
United States District Court, and upon
the hearing the court found that Ju Toy
was a native citizen of this country.
From this decision the United States Dis
trict Attorney appealed to the United
States Circuit Court of Appeals, and that
court submitted to the United States Su-
preme Court substantially these three
propositions:
PROPOSITIONS ADVANCED.
Should the United States District Court
have granted the writ of habeas corpus?
Should the court have dismissed the
writ or granted a further hearing, where
nothing appeared to show that the ex
ecutive officers had failed to grant a
proper hearing, abused their discretion,
or acted in any unlawful or improper
way upon the case presented to them
for determination?
Should the District Court treat the
finding and action of such executive Off
GERS upon the question of citizenship as
having been made by tribunal author
lied to decide the same as final and con-
elusive unless it be made affirmatively to
appear that such officers abused the dis
erection vested in them or committed pre-
judicial error?
To the first question the United States
Supreme Court answered no; to the sec
ond question, that the writ should be dis
missed, yes; and to the third question
yes.
In rendering this opinion the United
States Supreme Court says
1t is established, as we have said. that the
act purports to make the decision of the de-
partment final whatever the ground which
the right to enter the country is claimed-as
domicile and the belonging to a class excepted
from the exclusion acts. If, for the
purpose of argument, we assume that the fifth
amendment applies to the applicant and that
to deny entrance to citizen is to deprive him
of liberty, we nevertheless are of the opinion
that with regard to him due process of law
does not require judicial trial.
RIGHTS NOT LOST.
Justice Brewer in his dissenting opinion
calls attention to the fact that the attor-
neys for the applicant are not allowed to
copy the testimony taken by the de-
partment, and that they are required
to take an appeal to the secretary
within two days after the denial by the
Immigrant officials. He says further:
1t is true in this case the petitioner was re-
turning 10 San Francisco from China Whether
his absence from this country had been for
few weeks a few years is not shown, nor
does ii matter The right of citizen is not
lost by a temporary absence from his native
land and when he returns he is entitled to all
the protection which he had when he left.
This petitioner has been guilty of no crime,
and so judicially determined yet, in defiance
of this adjudication of innocence, without
examination before ministerial officer, he is
compelled to suffer punishment criminal.
and is denied the protection of either a grand
or petit jury But it is said that the
exclusion act speaks of Chinese persons. and
that such term includes citizens as. we'll
aliens and therefore Congress has given power
TO the immigration officers to punish citizens
of the United States IL they happen to be of
Chinese descent. But obviously the statutes
refer to citizens of China and not to citizens
of the United States.
The. full text of the decision and dis
senting opinion were received from
Washington yesterday by United States
Immigrant Commissioner North and
provoked much discussion in the Fed
eraI building.