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tem of distribution covers the Philippine Is-, books of account by Chinese merchants in lands through the medium of middlemen in the Islands would seriously embarrass all of the principal centers, and then by the small them and would drive out of business a great Chinese storekeepers, throughout the Islands, number. extending even to the remotest barrios or Nor is there any doubt that the act as a small settlements. The Chinese are the prin- fiscal measure was chiefly directed against cipal distributing factors in the Philippines the Chinese merchants. The discussion over of imported goods, and the principal gather- its repeal in the Philippine Legislature leaves ers of goods for exportation in the same re- no doubt on this point. So far as the other mote places. He said that if they were merchants in the Islands are concerned, its driven out of business there would be no oth

$515

er system of distribution available through-results would be *negligible and would operout the Islands, for the reason that there ate without especial burden on other classes are not Filipino merchants sufficiently nu- of foreign residents. The Supreme Court in merous, with resources and experience, to its opinion in this case refers to the act as provide a substitute. popularly known as the Chinese Bookkeeping Act.

The Chinese consul general testified that not more than eight Chinese merchants in

the Islands can read or write proficiently in any other language than Chinese, and that the great majority of them could not comply with the act. The merchants' establishments are made up of young Chinese persons, who come from China, begin at the beginning, and are promoted from time to time to be come the head of the business. The books are always kept in the Chinese language, and each Chinese establishment is completely separated from the native mode of living. Apparently there has always been some complaint in respect to the avoidance of tax

*514

es by the Chinese, because of the difficulty of determining what their sales tax should be. There has always been a sales tax in the Philippines. It is a method of taxation to which the people are used. Dr. Pardo de Tavera, the Philippine librarian and historian, testified in this case that efforts to enforce such a law as this in the Spanish times against the Chinese failed and became a dead letter. Governor General Harrison made a general recommendation looking to a law requiring the Chinese to keep books in other than Chinese language, so that their business might be investigated, saying that, until it was done, taxes would be evaded. Since the passage of the law in 1921, as already said, its enforcement has been postponed. Governor General Wood has sought to have the law repealed or changed in such a way that exceptions might be made to it, or that the books of the Chinese should be kept on stamped paper with the pages registered, for the purpose of making it difficult

for the Chinese taxpayer to change the records of his business. Protests from the Chinese government, from members of the insular committee of the House of Representatives, from Chambers of Commerce in the United States and elsewhere, were brought to the attention of the Philippine Legislature, and the repeal or modification of the law came up for discussion, but all proposed changes were defeated. The great weight of the evidence sustains the view that the enforcement by criminal punishment of an inhibition against the keeping of any Chinese

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"We come to the last question suggested, a construction of Act No. 2972 which allows the court legally to approve it.

"A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or a local dialect. The petitioners say the law is susceptible of that interpretation. But such interpretation might, and probably would, cause us to hold the law unconstitutional.

merchant, while permitted to keep his books of "A second interpretation is that the Chinese account in Chinese, must also keep another set of books in either English, Spanish, or a native dialect. The respondents claim the law is susceptible of such construction. It occurs to us, however, that this construction might prove as unsatis*factory as the first. Fraud is possible in any language. As approximation to governmental convenience and an approximation to equality in taxation is the most which may be expected.

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"A third construction, which is permissible in view of the history of the legislation and the wording of the statute, is that the law only intended to require the keeping of such books as mental inspection for tax purposes. were necessary in order to facilitate governescaped our notice that the law does not specify It has not what books shall be kept. It is stated by competent witnesses that a cash book, a journal, and a ledger are indispensable books of account for

(46 S.Ct.)

518

books of their business in Chinese. *Had the Legislature intended only what the Supreme Court has construed it to mean, why should it not have amended it accordingly? Apparently the Legislature thought the danger to the revenue was in the secrecy of the Chinese books, and additional books in the permitted languages would not solve the difficulty.

an efficient system of accounting, and that, in nese merchants from keeping the account the smaller shops, even simpler entries showing merely the daily records of sales and record of purchases of merchandise would be sufficient. The keeping of records of sales, and possibly further records of purchases, in English, Spanish, or a native dialect, and the filling out of the necessary forms would serve the purpose of the government while not being oppressive. Actually, notations in English, Spanish, or a dialect of all sales in sales books, and of data in other specified forms are insisted upon by the Bureau of Internal Revenue, although as appears from Exhibit 2, it is doubtful if all Chinese merchants have complied with these regulations. The faithful observance of such rules by the Chinese is not far removed from the offer of co-operation oft made for them by the petitioners of the 'translation of the account books' oft mentioned and explained by the respondents.

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"The law, in speaking of any person, company, partnership or corporation, makes use of the expression 'its account books.' Does the phrase 'its account books' mean that all the account books of the person, company, partnership or corporation must be kept exclusively in English, Spanish, or any local dialect? The petitioners *argue that the law has this meaning. Or does the phrase its account books' mean that the persons, company, partnership, or corporation shall keep duplicate sets of account books, one set in Chinese and the other a translation into English, Spanish or any local dialect? Counsel for the respondents urge this construction of the law upon the court. Or does the phrase 'its account books' mean that the person, company, partnership, or corporation must keep such account books as are necessary for taxation purposes? This latter interpretation occurs to us as a reasonable one, and as best safeguarding the rights of the accused."

[1] We fully concede that it is the duty of a court in considering the validity of an act to give it such reasonable construction as can be reached to bring it within the fundamental law. But it is very clear that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from conflict

with constitutional limitation.

One of the strongest reasons for not making this law a nose of wax, to be changed from that which the plain language imports, is the fact that it is a highly penal statute authorizing sentence of one convicted under it to a fine of not more than 10,000 pesos, or by imprisonment for not more than two years, or both. If we change it to meet the needs suggested by other laws and fiscal regulations and by the supposed general purpose of the legislation, we are creating by construction a vague requirement, and one objectionable in a criminal statute. We are likely thus to trespass on the provision of the Bill of Rights that the accused is entitled to demand the nature and cause of the accusation against him, and to violate the principle that a statute which requires the doing of an act so indefinitely described that men must guess at its meaning, violates due process of law. Connally v Construction Co., The court in effect concludes that what the (decided January 4, 1926) 269 U. S. 385, 46 S. Legislature meant to do was to require the Ct. 126, 70 L. Ed. 322; United States v. keeping of such account books in English, Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. Spanish, or the Filipino dialects as would be 298, 65 L. Ed. 516, 14 A. L. R. 1015; Internareasonably adapted to the needs of the tax- tional Harvester Co. v. Kentucky, 234 U. S. ing officers in preventing and detecting eva-216, 34 S. Ct. 853, 58 L. Ed. 1284; United sion of taxes, and that this might be deter-States v. Reese, 92 U. S. 214, 219, 23 L. Ed. mined from the statutes and regulations then 563. in force. What the court really does is to change the law from one which by its plain terms forbids the Chinese merchants to keep their account books in any language except English, Spanish, or the Filipino dialects, of broadly prohibitory it creates a *restriction and thus forbids them to keep account books upon its operation to make it valid that is not in the Chinese, into a law requiring them to in any way suggested by its language. In sevkeep certain undefined books in the permit-eral cases this court has pointed out that such ted languages. This is to change a penal strained construction, in order to make a law prohibitive law to a mandatory law of great conform to a constitutional limitation, cannot indefiniteness, to conform to what the court be sustained. assumes was, or ought to have been, the purpose of the Legislature, and which in the change would avoid a conflict with constitutional restriction.

[2] The main objection to the construction given to the act by the court below is that in making the act indefinitely mandatory instead

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In United States v. Reese, 92 U. S. 214, 23 L. Ed. 563, the question for decision arose on a demurrer to an indictment against inspectors of municipal election for refusing to receive and count the vote of a colored man. The power of Congress to forbid such an act

It would seem to us, from the history of the legislation and the efforts for its repeal or amendment, that the Philippine Legisla- was confined under the Fifteenth Amendment ture knew the meaning of the words it used, to a refusal to receive such a vote from a coland intended that the act as passed should ored man on account of his race, color, or prebe prohibitory, and should forbid the Chi-vious condition of servitude, but the section

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under which the indictment was brought did |ly separable so that each can stand alone, it is
not specifically confine the offense to a refusal not within the judicial province to give to the
for such a reason or to such discrimination, words used by Congress a narrower meaning
although in previous sections of the act there *than they are manifestly intended to bear in or-
was a general purpose disclosed in the act to der that crimes may be punished which are not
enforce the Fifteenth Amendment. The de- described in language that brings them within
murrer was sustained on the ground that the the constitutional power of that body."
section was invalid.

Chief Justice Waite, in delivering the opin-Transportation Co., 230 U. S. 126, 33 S. Ct. ion of the court, said at page 221:

"We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a *whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question then to be determined is whether we can introduce words of limitation into a penal statute, so as to make it specific, when, as expressed, it is general only. It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government."

* 520

And again the Chief Justice said:

"To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty."

The same principle was laid down, and this language approved by this court in the TradeMark Cases, 100 U. S. 82, 25 L. Ed. 550, in which, to save the validity of a general statute providing for trade-marks, the court was asked to construe the statute to apply only to trade-marks in interstate commerce. It was held this could not be done. Mr. Justice Miller, speaking for the court, at page 98,

said:

"It has been suggested that, if Congress has power to regulate trade-marks used in commerce with foreign nations and among the several states, these statutes shall be held valid in that class of cases, if no further. To this there are two objections: First, the indictments in these cases do not show that the trademarks which are wrongfully used were trademarks used in that kind of commerce; secondly, while it may be true that when one part of a statute is valid and constitutional, and another part is unconstitutional and void, the court may enforce the valid part where they are distinct

The case of Butts v. Merchants' & Miners' 964, 57 L. Ed. 1422, concerned the application of the Civil Rights Act of March 1, 1875 (Comp. St. §§ 3926-3930), to vessels of the United States engaged in the coastwise trade. In the Civil Rights Cases, 109 U. S. 3, 3 S. Ct. 18, 27 L. Ed. 835, it was held that the Civil Rights Act of 1875, to protect all citizens in their civil and legal rights, and in accordance with the terms of which a defendant was indicted for denying the privileges and accommodations of a theater in a state to a person on account of her color, was unconstitutional because power to enact and enforce such legislation in a state was in the state legislature only. The declaration in the Butts Case was brought to recover penalties for violation of the act against a corporation engaged in the transportation of passengers and freight be tween Boston, Mass., and Norfolk, Va., and the discrimination occurred on the high seas and in the jurisdiction of the United States, and not within any state. It was contended that the federal Civil Rights Act could, therefore, apply in such a case. The court pointed out the all-inclusive words of the act of Congress and held that they could not be cut down to include only what was strictly within the federal jurisdiction. The court said:

*522

"Only by reason of the general words indicative of the intended uniformity can it be said that there was a purpose to embrace American vessels upon the high seas, the District of Columbia and the territories. But how can the manifest purpose to establish an uniform law for the entire jurisdiction of the United States be converted into a purpose to create a law for only a small fraction of that jurisdiction? How can the use of general terms denoting an intention to enact a law which should be applicable alike in all places within that jurisdiction be said to indicate a purpose to make a law which should be applicable to a minor part of that jurisdiction and inapplicable to the major part? Besides, it is not to be forgotten that the intended law is both penal and criminal"-citing the case of United States v. Reese, and the Trade-Mark Cases, supra, as well as United States v. Harris, 106 U. S. 629, 642, 1 S. Ct. 601, 27 L. Ed. 290; Baldwin v. Franks, 120 U. S. 678, 685, 7 S. Ct. 656, 763, 30 L. Ed. 766; James v. Bowman, 190 U. S. 127, 140, 23 S. Ct. 678, 47 L. Ed. 979; United States v. Ju Toy, 198 U. S. 253, 262, 25 S. Ct. 644, 49 L. Ed. 1040; Illinois Central Railroad Co. v. McKendree, 203 U. S. 514, 529–530. 27 S. Ct. 153, 51 L. Ed. 298; Karem v. United States, 121 F. 250, 259, 57 C. C. A. 486, 61 L. R. A. 437.

[3] The effect of the authorities we have quoted is clear to the point that we may not

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(46 S.Ct.)

fundamental law we administer in the Philippine bill of rights was a marked change from that which prevailed in the Islands before we took them over, and is to be enforced in the light of the construction by this court of such limitations as it has recognized them since the foundation of our own government. In its application here, we must determine for ourselves the necessary meaning of a statute officially enacted in English and its conformity with fundamental limitations.

in a criminal statute reduce its generally in- | make every effort to protect their rights. The clusive terms so as to limit its application to only that class of cases which it was within the power of the Legislature to enact, and thus save the statute from invalidity. What it is proposed to do here is much more radical, for it is to ignore and hold for naught a plain prohibition of the keeping of account books in Chinese and insert in the act an affirmative requirement that account books not definitely determined which are adapted to the needs of the taxing officials be kept in the permitted languages. This is quite beyond the judicial power.

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[5] *We cannot give any other meaning to the Bookkeeping Act than that which its plain language imports, making it a crime for any one in the Philippine Islands engaged in business to keep his account books in Chinese. This brings us to the question whether the law thus construed to mean what it says is invalid.

[4] The suggestion has been made in argument that we should accept the construction put upon a statute of the Philippine Islands by their Supreme Court as we would the construction of a state court in passing upon the federal constitutionality of a state statute. The analogy is not complete. The Philippines are within the exclusive jurisdiction of the United States government, with complete pow-ferred to, provides that: er of legislation in Congress over them, and when the interpretation of a Philippine statute comes before us for review, we may, if there be need therefor, re-examine it for our

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selves as the court of last resort on *such a

The Philippine Bill of Rights, already re

"No law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws."

In Serra v. Mortiga, 204 U. S. 470, at page 474, 27 S. Ct. 343, 345 (51 L. Ed. 571), this

court said:

question. It is very true that with respect to questions turning on questions of local law, or those properly affected by custom inherited "It is settled that by virtue of the Bill of from the centuries of Spanish control, we defer much to the judgment of the Philippine Islands (32 Stat. 691, 692), that guaranties Rights, enacted by Congress for the Philippine or Porto Rican courts. Cami v. Central Vic-equivalent to the due process and equal pro

toria, Ltd., 268 U. S. 469, 45 S. Ct. 570, 69 L. Ed. 1056; Diaz v. Gonzales, 261 U. S. 102, 43 S. Ct. 286, 67 L. Ed. 550. But on questions of statutory construction, as of the Philippine Code of Procedure adopted by the United States Philippine Commission, this court may exercise an independent judgment. In Philippine Sugar Co. v. Philippine Islands, 247 U. S. 385, at page 390, 38 S. Ct. 513, 515 (62 L. Ed. 1177), involving the effect of section 285 of that Code, this court said:

"It is also urged that, since the construction of section 285 is a matter of purely local concern, we should not disturb the decision of the Supreme Court of the Philippine Islands. This court is always disposed to accept the construction which the highest court of a territory or possession has placed upon a local statute. Phoenix Ry. Co. v. Landis, 231 U. S. 578 [34 S. Ct. 179, 58 L. Ed. 377]. But that disposition may not be yielded to, where the lower court has clearly erred. Carrington v. United States, 208 U. S. 1 [28 S. Ct. 203, 52 L. Ed. 367]."

tection of the law clause of the Fourteenth Amendment, the twice in jeopardy clause of the Fifth Amendment, and the substantial guaranties of the Sixth Amendment, exclusive of the right to trial by jury, were extended to the the guaranties which Congress has extended to Philippine Islands. It is further settled that the Philippine Islands are to be interpreted as meaning what the like provisions meant at the time when Congress made them applicable to the Philippine Islands. Kepner V. United States, 195 U. S. 100 [24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655].

"For the purpose, therefore, of passing on the errors assigned we must test the correctness of the action of the court below by substantially the same criteria which we would apply to a case arising in the United States and controlled by the bill of rights expressed in the amendments to the Constitution of the United States."

In view of the history of the Islands and of the conditions there prevailing, we think the law to be invalid, because it deprives Chinese

*525

persons situated as they are, *with their extensive and important business long established, of their liberty and property without due process of law, and denies them the equal protection of the laws.

The question of applying American constitutional limitations to a Philippine or Porto Rican statute, dealing, with the rights of persons living under the government established by the United States, is not a local one, es- Of course the Philippine government may pecially when the persons affected are sub-make every reasonable requirement of its jects of another sovereignty, with which the taxpayers to keep proper records of their United States has made a treaty promising to business transactions in English or Spanish

46 S.CT.-40

or Filipino dialect by which an adequate, this account, and held it invalid. The court measure of what is due from them in meet- said: ing the cost of government can be had. How detailed those records should be we need not But we now discuss, for it is not before us. are clearly of opinion that it is not within the police power of the Philippine Legislature, because it would be oppressive and arbitrary, to prohibit all Chinese merchants from maintaining a set of books in the Chinese language, and in the Chinese characters, and thus prevent them from keeping advised of the status of their business and directing its conduct. As the petitioner, Yu Cong Eng, well said in his examination, the Chinese books of those merchants who know only Chinese and do not know English and Spanish (and they constitute a very large majority of all of them in the Islands,) are their eyes in respect of their business. Without them such merchants would be a prey to all kinds of fraud and without possibility of adopting any safe policy. It would greatly and disastrously curtail their liberty of action, and be oppressive and damaging in the preservation of their property. We agree with the Philippine Supreme Court in thinking that the statute construed as we think it must be construed is invalid.

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. * The established doctrine is that this liberty may not be interfered with, under the guise of pro*tecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts."

In Lawton v. Steele, 152 U. S. 133, 137, 14 S. Ct. 499, 501 (38 L. Ed. 385), the court said:

*

*527

The same principle is laid down in Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468, in Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283, and in Adams v. Tanner, 244 U. S. 590, 37 S. Ct.

"To justify the state in thus interposing its 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. authority in behalf of the public, it must appear, Cas. 1917D, 973, in which this court has held first, that the interests of the public generally, legislative attempts arbitrary and oppressiveas distinguished from those of a particularly to interfere with the liberty of the individclass, requires such interference; and, second, ual in the pursuit of lawful occupations to that the means are reasonably necessary for the involve a lack of due process. accomplishment of the purpose, and not unduly In Adams v. Tanner, supra, an act to re* 526 oppressive *upon individuals. The Legislature strict the maintenance of employment agenmay not, under the guise of protecting the pub-cies by forbidding the collection of fees from lic interests, arbitrarily interfere with private those seeking work, to avoid the extortion to business, or impose unusual and unnecessary which such workers were often subjected, was restrictions upon lawful occupations. In oth- held unconstitutional. The court said at page er words, its determination as to what is a 594 (37 S. Ct. 664): proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts."

In Holden v. Hardy, 169 U. S. 366, 398, 18 S. Ct. 383, 390 (42 L. Ed. 780), the court said: "The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class."

In the case of Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A. L. R. 1446, this court considered the validity of state legislation making it unlawful to teach a foreign language to children, adopted on the theory that the state had the right to protect children likely to become citizens from study of a particular language, in which they might read and learn doctrine inimical to the Constitution of the United States and to the nation, and forbidding the teachers of the language from pursuing their occupation on

"Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulaBut this is not enough to justify detions. struction of one's right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power in

voked."

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