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On the former view the United States admits aliens conditionally, and preserves that condition notwithstanding a preliminary decision in their favor by a board which it provides. The authority of Congress to impose such conditions hardly was disputed and is not open to doubt. Lem Moon Sing v. United States, 158 U. S. 538, 543; Ekiu v. United States, 142 U. S. 651; Japanese Immigrant Case, 189 U. S. 86, 97, 99. The only question is what it has done.

Some meaning must be found for $ 21, no less than for $25. For the petitioners it is said that $ 21 is satisfied by confining the power of the Secretary to cases where a board of special inquiry has not acted. But this would limit his action to a very narrow scope, since the act provides for such a board in every case where the alien does not appear to the inspector “to be clearly and beyond a doubt entitled to land.” Section 24, quoted above. Again it would defeat in great measure the policy of the original act of October 19, 1888, c. 1210, $ 1,25 Stat. 566 (see also act of March 3, 1891, c. 551, $ 11, 26 Stat. 1086), which obviously was to give a chance for fuller investigation than is possible at the moment of landing, when any inquiry necessarily must be of a very summary sort. See Japanese Immigrant Case, 189 U. S. 86, 99. Yet this policy is emphasized and reinforced by changing the period of probation from one year to three, while in other respects $21 follows almost literally the words of the earlier act. The petitioners' construction also would empty the requirement in § 20 that “any alien who shall come into the United States in violation of law” shall be deported, of the greater part of its natural meaning, since it would limit it to such aliens only as appeared to the inspector to be entitled beyond a doubt to land and for that reason escaped a board of special inquiry before they came in.

Turning now to $ 25, that section seems to us to disclose additional reasons on the Government's side. The board is an instrument of the executive power, not a court. It is made up, as we have mentioned, of the immigrant officials in the

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service, subordinates of the Commissioner of Immigration, whose duties are declared to be administrative by $ 23. Decisions of a similar type long have been recognized as decisions of the executive department, and cannot constitute res judicata in a technical sense. Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698, 713; Lem Moon Sing v. United States, 158 U. S. 538; Fok Yung Yo v. United States, 185 U. S. 296, 305; Japanese Immigrant Case, 189 U. S. 86, 98; United States v. Ju Toy, 198 U. S. 253, 263. The decisions necessarily are made, as we have said, in a summary way, in order to reach the “prompt determination” declared by $ 25 to be an object. The board has no power to compel witnesses to attend, but, as was said by the Circuit Court of Appeals, must decide upon such evidence as is at hand or is readily accessible. These are considerations against the likelihood that Congress meant such decisions to be binding upon the Secretary of Commerce and Labor, the superior officer of the members of the board. On the other hand, there is a plain and sufficient meaning for the words making their decision final-and that is that it shall be final where it is most likely to be questioned, in the courts.

It is true that the decision hardly will be questioned in the courts except when it is against the right to land. In the earlier acts the decision of an inspector was made final, in terms, only "when adverse to such right.” Act of March 3, 1891, c. 551, $ 8, 26 Stat. 1085. Since then, it is said, Congress has gone on increasing the importance of the decision, first, by providing a board in cases of doubt, with a limited appeal, act of March 3, 1893, c. 206, § 5, 27 Stat. 569, 570, and then by enlarging the right of appeal and extending the finality of the ultimate decision to every case, by the present $ 25. But this appears to us to strain and even pervert the conclusions to be drawn from the change. There can be no doubt, we think, that the provision of the act of 1891 referred to the courts. The adverse decision of an inspector would be followed by deportation unless that should be stopped by habeas corpus. To

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prevent a retrial in that event the provision was passed. It is not likely that the purpose was changed when the words “when adverse to such right” were dropped. More probably they were omitted simply as superfluous. If the question ever could arise in the courts, except when the alien was ordered to be deported, there was no reason why the decision to admit should not be given an effect equal to that of a decision to exclude. If the question could arise only in the former case there was no need of the omitted clause. But the matter which was before the mind of Congress presumably was that which had been before it on the former occasion, which had been the subject of judicial discussion, Lem Moon Sing v. United States, 158 U. S. 538; Fok Yung Yo v. United States, 185 U. S. 296, 304, 305, and which was not quite disposed of until the last term of this court. United States v. Ju Toy, 198 U. S. 253.

There was a suggestion at the argument that the decision of the Secretary was not warranted by the evidence. But if, for the purposes of decision, we assume that question to be open, we do not think that it needs discussion. We are of opinion that the decision of the Circuit Court of Appeals was right.

Judgment affirmed.


202 U. S.

Argument for Appellants.




No. 254. Submitted April 20, 1906.-Decided May 14, 1906.

Where the court of first instance in a Territory sees the witnesses the full

court deals with its findings as it would with the verdict of a jury, and does not go beyond questions of admissibility of evidence, and whether there was any evidence to sustain the conclusion reached, and this court

goes no further unless in an unusual case. A judgment for defendant in an action for specific performance based on a

finding of fact, among others, that defendant has conveyed the property to an innocent purchaser for value cannot be reversed, as specific performance is impossible where the party to the contract has conveyed the

property to one who is free from equities. Under the Oklahoma statute in regard to conveyance of real estate the con

tract to be valid must be in writing and subscribed by the parties thereto, and this is not met by a payment of a would-be purchaser to one claiming to be the agent of the owner but not authorized as such under the Oklahoma statute, nor in this case can such payment or a deposit of the deed in bank to be taken up under certain conditions be regarded as part performance on the part of the owner.

The facts are stated in the opinion.

Mr. Jean H. Everest and Mr. Henry H. Howard for appellants:

A contract binding under the statute of frauds may be gathered from letters, telegrams and writings. Beckwith v. Talbot, 95 U. S. 289; Ryan v. United States, 136 U. S. 68; Bibb v. Allen, 149 U. S. 481.

The contract is presumptive evidence of a consideration, and the burden of showing a want of consideration is upon the party seeking to avoid it. Ok. Statutes of 1893, § 815.

There is no such thing as a specialty or distinction between that and a simple contract under our law, and no statute of frauds requiring the consideration to be expressed in any case

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where the contract is required to be in writing; in view of which the true consideration may be shown by parol where the contract is sought to be avoided under the statute of frauds as well as in any other case. Kickland v. Menasha Woodenware Co., 31 N. W. Rep. 471; Williams v. Robinson, 40 Am. Rep. 352; Gass v. Hawkins, Thompson, Tenn. Cas. 238; Whitby v. Whitby, 36 Tennessee, 473; Thornburg v. Maston, 88 N. Car. 293.

The statute requiring the authority of the agent to be in writing refers to the agent of the vendor, and not of the vendee. And the agent of the purchaser may make a good contract within the statute of frauds without disclosing his principal, and the true relation may be shown by parol. Tewksbury v. Howard, 37 N. E. Rep. 355; Roehl v. Haumasser, 15 N. E. Rep. 345; 2 Parsons on Con., 7th ed., p. 680.

The plaintiffs took possession of the land under the contract and subsequently committed acts which would amount to trespass unless their possession was rightful. Under such circumstances the court should have allowed parol evidence to show the real circumstances. The defendant knew of and did not object to these acts. Allen v. Moore, 70 Pac. Rep. 682; Lawson on Contracts, $ 475; Overstreet v. Rice, 96 Am. Dec. 279; Ryan v. Nevins, 90 Am. Dec. 696.

The defendant Edwards, was not an innocent purchaser, and not being such he should have been required to convey to the plaintiffs. Union Pacific R. R. Co. v. McAlpine, 129 U. S. 305; Day v. Cohn, 4 Pac. Rep. 511; Willis v. Wozencraft, 22 California, 617; Calanchima v. Braustetter, 24 Pac. Rep. 149.

Mr. John W. Shartel, Mr. James R. Keaton and Mr. Frank Wells for appellees:

The findings of a judge in an equity case, or the verdict of a jury, are conclusive in Oklahoma if there is testimony to support them. Ellison v. Beannabia, 4 Oklahoma, 352. The civil procedure of Oklahoma, both original and appellate, is governed by civil code, which code was literally borrowed from

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