action for want of jurisdiction over the party defendant."

Thereupon, by permission of the court, plaintiff inserted at the end of each cause of action an amendment in substance as follows: That the enforcement of the law of the State through Lankford, as bank commissioner, abridges plaintiff's privileges and immunities as a citizen of the United States in that Lankford allowed and paid out of the assets of the bank and out of the Guaranty Fund the deposits of other persons similarly situated with plaintiff and refused arbitrarily to pay his, plaintiff's, deposit. And by the imposition of the lien on the assets of the bank by the State for the sums advanced by it to the payment of such other depositors postpones and prevents the collection of plaintiff's deposit because the amount so advanced is greater than the assets, and that plaintiff was entitled to the same treatment as other depositors.

The court then passed upon the motion to dismiss and granted it, reciting that the question of jurisdiction was alone involved.

The petition charges delinquency on the part of Lankford whereby the bank's officers were enabled to so conduct its affairs as to bring it to insolvency, making it necessary for him to take possession of it with its assets depleted. The petition also charges such conduct after he took possession as to subordinate plaintiff's claim to that of other depositors in the same situation. His conduct in this last particular, it is said, was in violation of the equal protection and due process clauses of the Constitution of the United States.

We assume that the amendment to the petition which charges that the lien of the State upon the assets of the bank was so enforced as to give other depositors a preference was intended to be but another way of asserting violation of the Constitution, not by the law of the State, but by the wrongful administration of the law by Lank

ford. Indeed the petition negatives state action. It is based, as we have seen, upon the tortious conduct of Lankford, not in exertion of the state law but in violation of it. The reasoning of No. 96 is therefore applicable and the conclusion must be the same, that is, the action is not one against the State, and the District Court erred in dismissing it for want of jurisdiction on that ground.

We say "on that ground," for we are brought to the consideration whether the judgment of dismissal can be sustained upon another ground. There is confusion in the petition and the argument used to support it. As we have seen, Lankford is charged with dereliction of duty whereby plaintiff in error has been injured; but there is an assignment of error based upon the due process and other clauses of the Constitution of the United States. They were violated, the assignment recites, by Lankford's conduct by which other depositors were preferred to plaintiff, and the decision was "without evidence, without notice, without a hearing provided by law, without an opportunity afforded by law for judicial review"; and that the District Court erred in deciding that "the consequent action based upon said facts against" Lankford and the insurance company as his surety "was in effect one against the State of Oklahoma."

In No. 96 we said of a like allegation that it was only possible to regard it as emphasis of Lankford's wrongdoing, not as an independent ground of recovery. To hold otherwise would be to disregard the whole scheme of plaintiff's petition which is, as we have seen, a cause of action against Lankford because of his derelictions. This being the nature of the action, the District Court erred in regarding it as one against the State and dismissing it on that ground. But, however, its judgment was right, plaintiff and Lankford being citizens of the same State, and the Surety Insurance Company being an Oklahoma corporation, and therefore the judgment must be affirmed.

Affirmed.

UNITED STATES ET AL. v. WOO JAN.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 586. Argued January 17, 1918.-Decided January 28, 1918.

Section 21 of the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898, empowers the Secretary of Labor, when satisfied that an alien has been found in the United States in violation of that act, or is subject to deportation under the provisions of that act or of any law of the United States, to cause such alien within the period of three years, etc., to be taken into custody and returned to the country whence he came; § 43, however, provides that the act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent. Held, that § 43 preserves the judicial proceedings prescribed by the Chinese Exclusion acts for the cases to which those acts apply, and that, where the ground was a violation of the Exclusion Acts and not a violation of the Immigration Act, the summary administrative method provided by § 21 cannot be used. United States v. Wong You, 223 U. S. 67, distinguished.

THE case is stated in the opinion,

Mr. Assistant Attorney General Fitts for the United States et al.

Mr. Francis R. Marvin and Mr. Proctor K. Malin for Woo Jan, submitted.

MR. JUSTICE MCKENNA delivered the opinion of the court.

The Immigration Act of February 20, 1907, 34 Stat. 898, provides as follows:

"Sec. 21. That in case the Secretary of [Commerce

and] Labor shall be satisfied that an alien has been found in the United States in violation of this Act, or that an alien is subject to deportation under the provisions of this Act or of any law of the United States [italics ours], he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came.

It is provided, however (§ 43), "That this Act shall not be construed to repeal, alter or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent.

The relation of these sections has given rise to diversity of decision, district courts of different districts and circuit courts of appeals for different circuits being in opposition. Ex parte Woo Shing (N. D. Ohio), 226 Fed. Rep. 141, sustains the power of the Secretary of Labor exercised under § 21, and the decision was approved by the Circuit Court of Appeals for the Eighth Circuit (Lo Pong v. Dunn, 235 Fed. Rep. 510; Sibray v. United States, 227 Fed. Rep. 1). The power of the Secretary was denied in the instant case by the District Court for the Eastern District of Kentucky (228 Fed. Rep. 927), and the decision has been followed by the Circuit Courts of Appeals for the Seventh and Fifth Circuits. United States v. Lem Him, 239 Fed. Rep. 1023; Lee Wong Hin v. Mayo, 240 Fed. Rep. 368.

The Circuit Court of Appeals, reciting this diversity, certifies to this court the following questions, "(a in the abstract, b concretely)":

"(a) Has the Secretary of Labor, acting within three years from the last entry, jurisdiction to arrest and deport a Chinese alien upon the sole ground that he is found in this country in violation of the Chinese exclusion act? "(b) Are the facts stated in Woo Jan's petition and admitted by demurrer inconsistent with any jurisdiction in the Department of Labor to cause his arrest and deporta

Opinion of the Court.

245 U.S.

The answer that is received to "(a)" determines the answer to "(b)." In other words, if the first be answered "No," the second will necessarily be answered "Yes," the second being, as indicated by the Circuit Court of Appeals, the concrete application of the abstraction of the first.

The facts are these: The Secretary of Labor, attempting to exercise the power supposed to be conferred upon him by § 21, caused the arrest of Woo Jan as a Chinese alien unlawfully within the United States with the view and purpose of deporting him. The warrant of arrest recited "that the said alien is unlawfully within the United States in that he is found therein in violation of the Chinese Exclusion laws, and is, therefore, subject to deportation under the provisions of section 21" of the Act of Congress of February 20, 1907, amended by the Act of March 26, 1910, 36 Stat. 263. It was directed to the "Inspector in Charge, Cleveland, Ohio, or to any immigrant inspector in the service of the United States."

Woo Jan petitioned the District Court in habeas corpus to be discharged from the arrest, asserting his right to be and remain in the United States and setting up as grounds of it, that he was a merchant and that his status as a resident had been investigated by the authorities of the United States and established, and that there was no authority of law for the issue of the warrant. To the petition the District Attorney demurred, and the court, holding that the warrant had been issued without authority of law, ordered the discharge of Woo Jan. The case, therefore, presents to us through the questions certified the validity of the judgment.

We are admonished at the outset by the diversity of opinion that there are grounds for opposing contentions. Indeed, §§ 21 and 43 seem to be, at first impression, in irreconcilable conflict. The declaration of § 21 is that the power of the Secretary of Labor shall extend to taking into custody and returning to the country from whence