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tion would have been necessary before the company would have become a corporation entitled to sue and be sued in the courts of the United States. But, as we have seen, the charter in question prescribed no such condition. If the legislature had intended to withhold corporate existence until a given amount of capital stock was subscribed and paid for, that intention, we may assume, would have been manifested by clear language. We do not feel at liberty, by mere construction, to qualify the explicit declaration in the 1st section of plaintiff's charter as to the corporate existence thereby created. We therefore hold that under the stat
dent to the existence of the corporation was the approval by the governor of the state of its proposed charter, and the certification of that approval under the great seal of the state.
We are of opinion that the circuit court | and paid for, a compliance with that condiof appeals erred in holding that the charter of the W. L. Wells Company made it a condition of its becoming a corporation that $10,000 of capital stock should be subscribed and paid for. The question was not as to the good faith of the incorporators, nor whether the company was organized in fraud of the law. Those were not matters to be inquired into in ordinary suits between the company and individuals or corporations. If the organization of the company as a corporation was tainted with fraud, it was for the state, by some appropriate proceeding, to annul its charter. The question before the court below was whether the company was, technically, a corporation, and that depend-utes of Mississippi the only conditions preceed upon the legal effect of the words of its charter. The 1st section of that charter expressly declares that the incorporators, their associates and assigns, "are hereby created a body politic and corporate, under the name and style of W. L. Wells Company, and by It is said that the interpretation we have that name shall have succession for fifty given to the charter of the W. L. Wells years, shall have power to sue and be sued, Company is not in harmony with the princontract and be contracted with, may have a ciples announced by the supreme court of corporate seal, and break and alter the same Mississippi. We are referred in support of at pleasure." These words can have but one this view to Perkins v. Sanders, 56 Miss. meaning. They manifest the purpose of the 733, 738, 739, which was a suit by a creditor legislature to create a corporation. Sub- to enforce the personal liability of stockstantially the same words in a charter holders for the debts of a certain company. granted by Congress were held to create a But there is nothing in that case clearly incorporation. Minor v. Mechanics' Bank, 1 dicating that the supreme court of MissisPet. 47, 63, 7 L. ed. 47, 54. The 2d section sippi would, if this question were before it, of the company's charter did not modify the hold the requirement of the subscription of provisions of the 1st section. It did not re- $10,000 of stock, and its payment before quire the payment of a given amount of commencing business, to have been a condistock subscriptions before the company tion precedent to the plaintiff's becoming a should be considered in esse as a corporation. corporation. That court, in the case cited, It did nothing more than confer the privi- referred to a section of the charter of the lege or power of commencing business when company there in question, providing that a specified amount, less than the whole, of the persons named in it, and all others who its authorized capital stock was subscribed then were or might thereafter become assoand paid for. The company was created a ciated with them, and their successors and corporation by the previous section, with assigns, "be and they are hereby created a power in its corporate name to sue and be body politic and corporate, under the name," sued, contract and be contracted with; and, etc,-a provision like that found in the under the general statutes of the state, it plaintiff's charter. The court said: came into existence as a corporation imme- was no proposition to create a corporation diately upon its charter being approved by upon the performance of precedent condithe governor of Mississippi, and such ap- tions, but it was itself the creation of a corproval certified by the secretary of state, un-poration, requiring no other act to be perder the great seal of the state. If the com- formed by the corporators than their acceptmencing of the business for which it was in-ance of the charter, and this even was uncorporated before a certain amount of capital stock was subscribed and paid for was in violation of the company's charter, that was a matter for which it could be called to account by the state, and did not affect the existence in law of the company as a corporation. Of course, if the charter of the company had made it a condition precedent to its becoming a corporation that a certain amount of capital stock should be subscribed
necessary, if, as it is probable, the corpora
rate act can be done until those conditions have been performed, except such as may be expressly permitted by the charter; and, as to those acts, it would be considered that the corporation had an existence before its full investiture with its corporate franchises. In the latter class, in which is this company, the corporation is in existence for all the purposes of its creation from the beginning, except so far as there may be restraints placed on it by the charter, either expressly or by plain implication."
affirmed on appeal by the Secretary of Commerce and Labor.
The decision of the Secretary of Commerce and Labor, affirming the denial by the immigration officers, after examination, of the right of a person of Chinese descent to enter the United States, is no less conclusive on the Federal courts under the act of August 18, 1894 (28 Stat. at L. 372, 390, chap. 301, U. S. Comp. Stat. 1901, p. 1303), § 1, in habeas corpus proceedings when citizenship is the ground on which the right of entry is claimed than when the ground is domicil and the belonging to a class excepted from the exclusion acts.
It thus appears that the supreme court of Mississippi, in the case referred to, decided that where acts are required to be performed before the corporation comes into existence, no corporation is created or can exist until those acts are performed. In this general view we entirely concur. But the question remains whether the particular charter here in question made it a condition precedent to the existence of the W. L. Wells Company as a corporation, that a certain amount of its capital stock should be subscribed and paid for. As already indicated, we are of opinion that no such condition precedent was prescribed, and that under the statutes of Argued April 3, 1905. Mississippi, and independently of the subscription of a certain amount of stock and
The constitutional guaranty of due process of law is not infringed by the provision of the act of August 18, 1894 (28 Stat. at L. 372, 390, chap. 301, U. S. Comp. Stat. 1901, p. 1303), § 1, making the decision of the appropriate department on the right of a person of Chinese descent to enter the United States conclusive on the Federal courts in habeas corpus proceedings, in the absence of any abuse of authority, even where citizenship is the ground on which the right of entry is claimed.
Decided May 8,
its payment, the plaintiff became, in law, a ON A CERTIFICATE from the United
corporation when the governor approved its charter, and the fact of such approval was certified by the secretary of state under the great seal of Mississippi. It could not thereafter dispute its liability for acts done by it in its corporate name, nor be denied the right to sue in that name.
As the Circuit Court of Appeals proceeded on different grounds as to the jurisdiction of the Circuit Court, its judgment must be reversed, and the case remanded, with directions to that court to set aside its own judgment, and for such further proceedings touching the merits of the case as may be consistent with this opinion and with law. Reversed.
States Circuit Court of Appeals for the Ninth Circuit presenting the question whether habeas corpus should be granted in behalf of a person of Chinese descent whose right to enter the United States has been denied by the immigration officers and affirmed on appeal by the Secretary of Commerce and Labor, and citizenship is the only ground alleged as making the detention unlawful, and whether, under such circumstances, the writ should be dismissed or a further hearing be granted, and whether the decision of the Secretary of Commerce and Labor is conclusive, in the absence of abuse of authority. The first question answered in the negative, the third in the affirmative, and the second by stating that the writ should be dismissed. The facts are stated in the opinion. Assistant Attorney General McReynolds for the United States.
Messrs. Hayden Johnson, Oliver Dibble, and Henry C. Dibble for Ju Toy.
Mr. Justice Holmes delivered the opinion of the court:
This case come here on a certificate from
the circuit court of appeals presenting certain questions of law. It appears that the appellee, being detained by the master of the steamship Doric for return to China, presented a petition for habeas corpus to the district court, alleging that he was a nativeborn citizen of the United States, returning after a temporary departure, and was denied
for admission was considered and denied by such officers, and that the denial was affirmed upon appeal to the Secretary of Commerce and Labor, and where nothing more appears to show that such executive officers 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?
permission to land by the collector of the in the United States, that his application port of San Francisco. It also appears from the petition that he took an appeal from the denial, and that the decision was affirmed by the Secretary of Commerce and Labor. No further grounds are stated. The writ issued, and the United States made return, and answered, showing all the proceed ings before the Department, which are not denied to have been in regular form, and setting forth all of the evidence and the orders made. The answer also denied the allegations of the petition. Motions to dismiss the writ were made on the grounds that the decision of the Secretary was conclusive, and that no abuse of authority was shown. These were denied, and the district court decided, seemingly on new evidence, subject to exceptions, that Ju Toy was a native-born citizen of the United States. An appealing, the lawfully designated immigration ofwas taken to the circuit court of appeals, alleging errors the nature of which has been indicated. Thereupon the latter court certified the following questions:
"Third. In a habeas corpus proceeding in a district court of the United States, instituted in behalf of a person of Chinese descent being held for return to China by the steamship company which recently brought him therefrom to a port of the United States, and who applied for admission therein upon the ground that he was a nativeborn citizen thereof, but who, after a hear
ficers found was not born therein, and to whom they denied admission, which finding and denial, upon appeal to the Secretary of Commerce and Labor, was affirmed,-should the court treat the finding and action of such executive officers upon the question of citizenship and other questions of fact as having been made by a tribunal authorized to decide the same, and as final and conclusive unless it be made affirmatively to appear that such officers, in the case submitted to them, abused the discretion vested in them, or, in some other way, in hearing and determining the same, committed prejudicial error?"
"First. Should a district court of the United States grant a writ of habeas corpus in behalf of a person of Chinese descent being held for return to China by the steamship company which brought him therefrom, who, having recently arrived at a port of the United States, made application to land as a native-born citizen thereof, and who, after examination by the duly authorized immigration officers, was found by them not to have been born in the United States, was denied admission, and ordered We assume in what we have to say, as deported, which finding and action upon ap- the questions assume, that no abuse of aupeal was affirmed by the Secretary of Com-thority of any kind is alleged. That being merce and Labor, when the foregoing facts appear to the court, and the petition for the writ alleges unlawful detention on the sole ground that petitioner does not come within the restrictions of the Chinese exclusion acts, because born in and a citizen of the United States, and does not allege or show in any other way unlawful action or abuse of their discretion or powers by the immigration officers who excluded him?
out of the case, the first of them is answered by the case of United States v. Sing Tuck, 194 U. S. 161, 170, 48 L. ed. 917, 921, 24 Sup. Ct. Rep. 621: "A petition for habeas corpus ought not to be entertained unless the court is satisfied that the petitioner can make out at least a prima facie case." This petition should have been denied on this ground, irrespective of what more we have to say, because it alleged nothing except citizenship. It disclosed neither abuse "Second. In a habeas corpus proceeding of authority nor the existence of evidence should a district court of the United States not laid before the Secretary. It did not dismiss the writ, or should it direct a new even set forth that evidence, or allege its or further hearing upon evidence to be pre-effect. But, as it was entertained, and the sented where the writ had been granted in behalf of a person of Chinese descent being held by the steamship company for return to China, from whence it brought him, who recently arrived from that country, and The broad question is presented whether asked permission to land, upon the ground or not the decision of the Secretary of Comthat he was born in and was a citizen of merce and Labor is conclusive. It was held the United States, when the uncontradicted in United States v. Sing Tuck, 194 U. S. return and answer show that such person 161, 167, 48 L. ed. 917, 920, 24 Sup. Ct. was granted a hearing by the proper immi- Rep. 621, that the act of August 18, 1894 gration officers, who found he was not born' (28 Stat. at L. 372, 390, chap. 301, § 1,
district court found for the petitioner, it would be a severe measure to order the petition to be dismissed on that ground now, and we pass on to further considerations.
plishing all its results by the same general words, must be valid as to all that it embraces, or altogether void. An exception of a class constitutionally exempted cannot be read into those general words merely for the purpose of saving what remains. That has been decided over and over again. United States v. Reese, 92 U. S. 214, 221, 23 L. ed. 563, 565; Trade-Mark Cases, 100 U. S. 82, 98, 99, 25 L. ed. 550, 553, 554; Allen v. Louisiana, 103 U. S. 80, 84, 26 L. ed. 318, 319; United States v. Harris, 106 U. S. 629, 641, 642, 27 L. ed. 290, 294, 295, 1 Sup. Ct. Rep. 601; Poindexter v. Greenhow, 114 U. S. 269, 305, 29 L. ed. 185, 197, 5 Sup. Ct. Rep. 903, 962; Baldwin v. Franks, 120 U. S. 678, 685-689, 30 L. ed. 766, 768, 769, 7 Sup. Ct. Rep. 656, 763; Smiley v. Kansas, 196 U. S. 447, 455, ante, 289, 25 Sup. Ct. Rep. 289. It necessarily follows that when such words are sustained, they are sustained to their full extent.
U. S. Comp. Stat. 1901, p. 1303), purported | 167, 48 L. ed. 917, 920, 24 Sup. Ct. Rep. to make it so, but whether the statute could 621; Lem Moon Sing v. United States, 158 have that effect constitutionally was left U. S. 538, 546, 547, 39 L. ed. 1082, 15 Sup. untouched, except by a reference to cases Ct. Rep. 967. It also is established by the where an opinion already had been ex- former case and others which it cites that pressed. To quote the latest first, in Japan- the relevant portion of the act of August ese Immigrant Case (Yamataya v. Fisher), 18, 1894 [28 Stat. at L. 372] chap. 301, 189 U. S. 86, 97, 47 L. ed. 721, 724, 23 Sup. is not void as a whole. The statute has Ct. Rep. 611, 613, it was said: "That Con- been upheld and enforced. But the relegress may exclude aliens of a particular | vant portion being a single section, accomrace from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention, are principles firmly established by the decisions of this court." See also United States ex rel. Turner v. Williams, 194 U. S. 279, 290, 291, 48 L. ed. 979, 983, 984, 24 Sup. Ct. Rep. 719; Chin Bak Kan v. United States, 186 U. S. 193, 200, 46 L. ed. 1121, 1125, 22 Sup. Ct. Rep. 891. In Fok Young Yo v. United States, 185 U. S. 296, 304, 305, 46 L. ed. 917, 921, 22 Sup. Ct. Rep. 686, it was held that the decision of the collector of customs on the right of transit across the territory of the United States was conclusive, and, still more to the point, in Lem Moon Sing v. United States, 158 U. S. 538, 39 L. ed. 1082, 15 Sup. Ct. Rep. 967, where the petitioner for habeas corpus alleged facts which, if true, gave him a right to enter and remain in the country, it was held that the decision of the collector was final as to whether or not he belonged to the privileged class. It is true that it may be argued that these cases are not directly conclusive of the point now under decision. It may be said that the parties concerned were aliens, and that although they alleged absolute rights, and facts which it was contended went to the jurisdiction of the officer making the decision, still their rights were only treaty or statutory rights, and therefore were subject to the implied qualification imposed by the later statute, which made the decision of the collector with regard to them final. The meaning of the cases, and the language which we have quoted, is not satisfied by so narrow an interpretation, but we do not delay upon them. They can be read.
It is established, as we have said, that the act purports to make the decision of the Department final, whatever the ground on which the right to enter the country is claimed, as well when it is citizenship as when it is domicil, and the belonging to a class excepted from the exclusion acts. United States v. Sing Tuck, 194 U. S. 161,
In view of the cases which we have cited it seems no longer open to discuss the question propounded as a new one. Therefore we do not analyze the nature of the right of a person presenting himself at the frontier for admission. Re Ross (Ross v. McIntyre), 140 U. S. 453, 464, 35 L. ed. 581, 586, 11 Sup. Ct. Rep. 897. But it is not improper to add a few words. The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate. If, for the purpose of argument, we assume that the 5th Amendment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial. That is the result of the cases which we have cited, and the almost necessary result of the power of Congress to pass exclusion laws. That the decision may be intrusted to an executive officer, and that his decision is due process of law, was affirmed and explained in Nishimura Ekiu v. United States, 142 U. S. 651, 660, 35 L. ed. 1146, 1149, 12 Sup. Ct. Rep. 336, and in Fong Yue Ting v. United States, 149 U. S. 698, 713, 37 L. ed. 905, 913, 13 Sup. Ct. Rep. 1016, before the authorities to which we already have referred. It is un
necessary to repeat the often-quoted re- | which were overruled by the court, and marks of Mr. Justice Curtis, speaking for thereupon judgment was entered that the the whole court in Den ex dem. Murray v. petitioner was illegally restrained of his libHoboken Land & Improv. Co. 18 How. 272, erty, and that he be discharged from cus280, 15 L. ed. 372, 376, to show that the tody. An appeal from this order was taken requirement of a judicial trial does not pre- to the court of appeals for the ninth cirvail in every case. Lem Moon Sing v. Unit-cuit, which court certified to us the followed States, 158 U. S. 538, 546, 547, 39 L. ed. 1082, 1085, 15 Sup. Ct. Rep. 967; Japanese Immigrant Case (Yamataya v. Fisher), 189 U. S. 86, 100, 47 L. ed. 721, 725, 23 Sup. Ct. Rep. 611; Public Clearing House v. Coyne, 194 U. S. 497, 508, 509, 48 L. ed. 1092, 1098, 24 Sup. Ct. Rep. 789.
We are of opinion that the first question should be answered, no; that the third question should be answered, yes, with the result that the second question should be an swered that the writ should be dismissed, as it should have been dismissed in this case. It will be so certified.
Mr. Justice Brewer, dissenting:
I am unable to concur in the views expressed in the foregoing opinion, and, believing the matter of most profound importance, I give my reasons therefor.
Ju Toy presented his petition to the United States district court at San Francisco, alleging that he was a native-born citizen of the United States; that he was a resident of the United States, temporarily absent, and returning to the city and state in which he was born; that the collector of the port of San Francisco refused to permit him to land, and that he was detained by the general manager of the steamship company in which he came to San Francisco, with a view to his return to China. A writ of habeas corpus was issued, and thereupon the district attorney, in behalf of the United States, answered, setting up the application for landing, a hearing and denial thereof by the immigration officer, an appeal to the Secretary of Commerce and Labor, and his action approving that of the immigration officer, and with the answer exhibited a copy of all the evidence offered upon the hearing, and the orders by the officer and the Secretary. Thereupon a motion was made by the district attorney to dismiss the writ, on the ground substantially that it did not appear that the immigration officer or the Secretary of Commerce and Labor abused the discretion vested in them by law, or that their action was unlawful or that any error prejudicial to the petitioner was committed. This motion to dismiss was overruled, and the cause referred to a referee to take evidence. Upon the testimony taken by him the referee reported that the petitioner was born in the United States and a citizen thereof. Exceptions to this report were filed by the district attorney,
"First. Should a district court of the United States grant a writ of habeas corpus in behalf of a person of Chinese descent being held for return to China by the steamship company which brought him therefrom, who, having recently arrived at a port of the United States, made application to land as a native-born citizen thereof, and who, after examination by the duly authorized immigration officers, was found by them not to have been born in the United States, was denied admission, and ordered deported, which finding and action upon appeal was affirmed by the Secretary of Commerce and Labor, when the foregoing facts appear to the court, and the petition for the writ alleges unlawful detention on the sole ground that petitioner does not come within the restrictions of the Chinese exclusion acts, because born in and a citizen of the United States, and does not allege or show in any other way unlawful action or abuse of their discretion or powers by the immigration officers who excluded him?
"Second. In a habeas corpus proceeding should a district court of the United States dismiss the writ or should it direct a new or further hearing upon evidence to be presented, where the writ had been granted in behalf of a person of Chinese descent being held by the steamship company for return to China, from whence it brought him, who recently arrived from that country, and asked permission to land, upon the ground that he was born in and was a citizen of the United States, when the uncontradicted return and answer show that such person was granted a hearing by the proper immigration officers, who found he was not born in the United States, that his application for admission was considered and denied by such officers, and that the denial was affirmed upon appeal to the Secretary of Commerce and Labor, and where nothing more appears to show that such executive officers 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?
"Third. In a habeas corpus proceeding in a district court of the United States instituted in behalf of a person of Chinese descent being held for return to China by the steamship company which recently brought him therefrom to a port of the United States, and who applied for admission there