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Chinese laborers may not now enter the United States at all, nor even reenter after residence here unless they come within Article II of the treaty of 1894, which imposes in addition to registration certain other conditions, including the production of the “ return certificate" therein mentioned. And other Chinese persons, of the permitted classes, such as merchants, are not entitled to reenter because of their registration certificates (if they have elected to register), but because under the Law On Bewo decision (144 U. S., 47), holding that a returning merchant is not required to produce the entrance certiticate of the act of 188+, their commercial domicile here has not been forfeited by temporary absence. Of the fact of this domicile a registration certificate would amount to a kind of evidence, but is not the evidence now specifically required by law (section 2, act of 1893, supra). I remark, parenthetically, that the old registration and return certificates, or certificates of identity, for laborers, of the acts of 1882 and 1884 (section + of both acts) have been abolished since the act of October 1, 1888, except so far as reinstated under a new form and certain limitations by the convention of 1894 (Chinese Ecclusion Case, 130 U. S., 581; 21 Opin., 68). So that a registration certificate under the acts of 1892 and 1893 appears clearly to be only the requisite warrant of a Chinese laborer who is in the United States to be and remain here.
“The right to be and remain within the United States carries with it the right to pass into any part of the United States." (22 Opin., 353, 357). Does this liberty of passage embrace the Hawaiian Islands, which now constitute an organized territory of the United States?
The resolution of annexation of the Hawajian Islands provides that: “There shall be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as are now or may hereafter be allowed by the United States; and no Chinese, by reason of anything herein contained, shall be allowed to enter the United States from the Hawaiian Islands."
This law had the effect of extending our Chinese laws to the Hawaiian Islands (22 Opin., 249), with a special limitation thereof to further immigration into those Islands, and a special prohibition of entry into the United States therefrom (22 Opin., 353). The effect of the opinion cited is to rule that “immigration” is restricted to the original entry and does not apply to reentry (Id., 359). Now, by a parity of reasoning and a necessary inference, and because of the language of the resolution, which I have quoted, it seems to me that the “further immigration" forbidden is that from other countries than the United States. This is shown by the special prohibition upon entering the United States from the Hawaiian Islands, as if suggested by a doul i whether the existing prohibition in this country “to come from any foreign port or place" (act of July 5, 1881, sec. 1), would otherwise exclude Chinese coming from the Hawaiian Islands. Consequently, because of the specific prohibition, I think the converse entry of Chinese into Hawaii from the United States is allowable so far as the resolution is concerned, not being covered by the ban on further immigration.
The organic act for the government of Hawaii (31 Stat. 141, sec. 101) made local registration of the Chinese who were in the Hawaiian Islands when the act took effect, under the above stated acts of 1892 and 1893, a requisite to legal residence in the Islands, and carried out the special prohibition of the resolution by providing:
“That no Chinese laborer, whether he shall hold such certificate or not, shall be allowed to enter any State, Territory, or district of the United States from the Hawaiian Islands."
It will be noted that section 101 declares that until the expiration of the period of one year allowed for registration, such Hawaiian Chinese, “shall not be deemed to be unlawfully in the United States if found therein without such certificates.” It is evident that the word “therein” refers to the Hawaiian Islands.
To my mind the only fair conclusion from the foregoing laws, and especially under the inference drawn from the italicised words just quoted, is that all Chinese persons who have a right to be in the United States, as evidenced by valid certificates of residence or registration, are entitled to pass from the United States to the Hawaiian Islands, and to be protected while there by their registration certificates as they would be in any organized Territory of the continental and integral domain of the United States. It is clear, beyond question, from the language of the resolution and the act, that such certificates would give them no right to repass to the United States from the Hawaiian Islands.
The question of the right of return, however, I am not called upon to pursue. I, therefore, intimate no impressions of the possible right of return of Chinese persons not laborers, or of Chinese laborers who meet the conditions specified in the treaty of 1894, notwithstanding the proviso of section 101 of the Organic act for Hawaii. Furthermore, I desire to limit strictly my views of the liberty of passage of Chinese persons throughout the different portions of the United States to the case presented, which submits the question as affecting this particular territory and as controlled by the special laws cited.
I have the honor to answer your question in the negative. I return the papers herewith. Very Respectfully,
P. C. KNOX. The SECRETARY OF THE TREASURY.
EXECUTIVE COUNCIL OF PORTO RICO-FRANCHISES
EXEMPTION FROM TAXATION.
The delegation by Congress to the Executive Council of Porto Rico by
the thirty-second section of the act of April 12, 1900 (31 Stat., 83), of the power to grant franchises respecting the public utilities of that Island, did not confer upon it the other sovereign power of taxation,
including the authority to exempt from taxation. The power to grant franchises and the power to tax are different and
distinct things. The power of taxing or of exempting franchises from taxation can not be regarded as in any sense incidental to that of granting franchises, and is by the act of April 12, 1900, delegated to
the Legislative Assembly of Porto Rico. The action of the Executive Council, therefore, in so far as it attempts to
exempt from taxation the property of a company which it has granted a franchise, is void, and the President should not approve such a franchise.
DEPARTMENT OF JUSTICE,
August 14, 1901. Sır: I have the honor to acknowledge the receipt of your letter of the 31st ultimo, transmitting two certified copies of
a “franchise," granting to the Compania de los Ferrocarriles de Puerto Rico, the right to extend its railway lines between certain points in Porto Rico; also a copy of a letter from Mr. Wenceslao Borda, jr., addressed to the President on the 29th ultimo, stating his objections, as a Porto Rican taxpayer, to the grant.
You request my advice touching the approval of the grant by the President under section 2 of the joint resolution of May 1, 1900, and the return of the papers, which are herewith inclosed.
I advise that the “franchise” in question be not approved by the President.
Upon examination of it I find, on page 7, and in section 5, that the Executive Council has undertaken to exempt the company and its property from all taxation, the exemption in section 5 being for the period of twenty-five years.
These exemptions the Executive Council was not authorized to make. Congress delegated to it, by section 32 of the Organic act of Porto Rico, the sovereign power to grant franchises respecting the public utilities of the Island, such as railroads, telephones, telegraphs, and the like. Congress did not delegate to it the other sovereign power of taxation, including the authority to exempt from taxation. This was delegated to the Legislative Assembly of Porto Rico.
The two powers are different and distinct things. That of taxing or exempting from taxation can not be regarded as in any sense incidental to that of granting franchises.
It is familiar law that a power to grant public property or rights must be strictly construed and can not be held to imply more than its affirmative language imports, and that there is a presumption against an intent to part with or impair an important sovereign power or to authorize a body intrusted with delegated powers to do so.
I am clearly of opinion, therefore, that the Executive Council has, in the matter of these exemptions, which are obviously important considerations in the “ franchise” or contract in question, invaded the province of the Legislative Assembly, and that the proposed exemptions are void. Respectfully,
P. C. KNOX. The SECRETARY OF STATE.
The offering of prizes by a newspaper to those who make the nearest
estimates of the number of paid admissions to the Pan-American Esposition at Buffalo, from the day of opening to the day of closing, is not in violation of section 3894, Revised Statutes, as amended by the
act of September 19, 1890 (26 Stat., 465). The words “dependent upon lot or chance," as used in that section,
exclude estimates which are based upon mental calculation, even though the factors which enter into such calculation may be uncertain
and matter of conjecture. The opinion of Attorney-General Miller of October 31, 1890 (19 Opin.,
679), and of Attorney-Gernral Griggs of September 4, 1900 (ante, p. 207), reaffirmed.
DEPARTMENT OF JUSTICE,
August 19, 1901. SIR: I have the honor to acknowledge the receipt of your letter of August 8, 1901, in which you request an opinion as to whether the use of the mails in advertising a so-called “Guessing contest" is a violation of section 3894 of the Revised Statutes, as amended by the act of September 19, 1890. In your letter you set forth at length the nature of the guessing contest in question by reciting an advertisement of it, by which it appears that the Detroit Journal proposes to give to its subscribers 1,000 cash prizes, aggregating $15,000, the prizes to be distributed in varying amounts among those who make the nearest estimates of the number of paid admissions to the Pan-American Exposition at Buffalo, from the day of opening, May 1, to the day of closing, October 31, inclusive. As I understand the scheme, the estimate can be made and sent at any time before the last day of the Exposition, but three special prizes are offered for estimates prior to August 15, September 15, and October 15, respectively.
You refer me to an opinion rendered by Attorney-General Miller on October 31, 1890, in which he beld that a guessing contest, advertised by the Cincinnati Enquirer of a similar nature was held to be without the operation of the lottery laws, and you ask me whether I adbere to the opinion thus given by this Department. You state that: