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Section 6

THE IMPLIED POWERS OF CONGRESS.

Sub-Section A.

THE EXCLUSION OF FOREIGNERS.

THE CHINESE EXCLUSION CASE.

CHAE CHANG PING v. UNITED STATES.

130 U. S., 581. 1889.

The facts are sufficiently stated in the opinion of the court.
MR. CHIEF JUSTICE FIELD delivered the opinion of the court.

The appellant, Chae Chang Ping, was a subject of the Emperor of China and a laborer by occupation. He resided at San Francisco, California, following his occupation, from some time in 1875 until June 2, 1887, when he left for China on the steamship “Gaelic,” having in his possession a certificate, in terms entitling him to return to the United States, bearing date on that day, duly issued to him by the Collector of Customs of the port of San Francisco, pursuant to the provisions of section four of the restriction act of May 6, 1882, as amended by the Act of July 5, 1884.

On the 7th of September, 1888, the appellant, on his return to California, sailed from Hong Kong in the steamship “Belgic," which arrived within the port of San Francisco on the 8th of October following. On his arrival he presented to the proper custom-house officer his certificate and demanded permission to land, the Collector of the port refused the permit, solely on the ground that under the Act of Congress, approved October 1, 1888, supplementary to the restriction acts of 1882 and 1884, the certificate had been annulled and his right to land abrogated, and he had been thereby forbidden again to enter the United States. The captain of the steamship, therefore, detained the appellant on board the steamer. Thereupon a petition on his behalf was presented to the Circuit Court of the United States for the Northern District of California, alleging that he was unlawfully restrained of his liberty, and praying that a writ of habeas corpus might be issued directed to the master of the steamship, commanding him to have the appellant, with the cause of his detention, before the court for a hearing. Upon the hearing which followed, the court held that the appellant was not entitled to enter the United States, and was not

Note.-See Appendix for the Immigration Law of the United States.

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unlawfully restrained of his liberty, and ordered that he be remanded to the custody of the master of the steamship from which he had been taken under the writ. From this order an appeal was taken to this court.

The appeal involves a consideration of the validity of the Act of Congress of October 1, 1888, prohibiting Chinese laborers from entering the United States who had departed before its passage, having a certificate issued under the act of 1882 as amended by the act of 1884, granting them permission to return. The validity of the act is assailed as being in effect an expulsion from the country of Chinese laborers, in violation of existing treaties between the United States and the government of China, and of rights vested in them under the laws of Congress.

There being nothing in the treaties between China and the United States to impair the validity of the Act of Congress of October 1, 1888, was it on any other ground beyond the competency of Congress to pass it? If so, it must be because it was not within the power of Congress to prohibit Chinese laborers who had at the time departed from the United States, or should subsequently depart, from returning to the United States. Those laborers are not citizens of the United States; they are aliens. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure. Whether a proper consideration by our government of its previous laws, or a proper respect for the nation whose subjects are affected by its action, ought to have qualified its inhibition and made it applicable only to persons departing from the country after the passage of the act, are not questions for judicial determination. If there be any just ground of complaint on the part of China, it must be made to

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the political department of our government, which is alone competent to act upon the subject. The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other disposition, not such as are personal and untransferable in their character.

Order affirmed.

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Sub-Section B.

THE RIGHT OF EMINENT DOMAIN.

KOHL v. UNITED STATES.

91 U. S., 367. 1875.

Congress by act of March 2, 1872, authorized the Secretary of the Treasury to purchase in the City of Cincinnati a suitable site for a building for the accommodation of the United States post office and for other public purposes, and by a subsequent act made an appropriation "for the purchase at private sale or by condemnation of such site.” Pursuant to this act a proceeding was instituted in the Circuit Court by the United States to appropriate a certain parcel of land in the city of Cincinnati as a site for a post office. The owners of the property sought to be appropriated moved to dismiss the proceeding on the ground that Congress did not under the Constitution have the right of eminent domain. The Circuit Court gave judgment for the United States. An appeal was taken to the United States Supreme Court.

MR. JUSTICE STRONG delivered the opinion of the court.

It has not been seriously contended during the argument that the United States Government is without power to appropriate lands or other property within the States for its own use, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and lighthouses, for custom-houses, post-offices, and court-houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be. No one doubts the existence in the State governments of the right of eminent domain,--a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or immediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. But it is no more necessary for the exercise of the powers of a State government than it is for the exercise of the conceded powers of the Federal government. That government is as sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects only are committed to it, but its power over those subjects is as full and complete as is the power of the States over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder.

But, if the right of eminent domain exists in the Federal government, it is a right which may be exercised within the States, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. In Albeman v. Booth, 21 How. 523, Chief Justice Taney described in plain language the complex nature of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the Constitution of the United States, independent of the other. Neither is under the necessity of applying to the other for permission to exercise its lawful powers. Within its own sphere, it may employ all the agencies for exerting them which are appropriate or necessary, and which are not forbidden by the law of its being. When the power to establish post-offices and to create courts within the States was conferred upon the Federal government, included in it was authority to obtain sites for such offices and for court-houses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain lands for public uses. Its existence, therefore, in the grantee of that power, ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The Fifth Amendment contains a provision that private property shall not be taken for public use without just compensation. What is that but an implied assertion, that,

, on making just compensation, it may be taken?

It is true, this power of the Federal government has not heretofore been exercised adversely; but the non-user of a power does not

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disprove its existence. In some instances, the States, by virtue of their own right of eminent domain, have condemned lands for the use of the general government, and such condemnations have been sustained by their courts, without, however, denying the right of the United States to act independently of the States.

The proper view of the right of eminent domain seems to be that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another. Beyond that, there exists no necessity; which alone is the foundation of the right. If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment. Such consent is needed only, if at all, for the transfer of jurisdiction and of the right of exclusive legislation after the land shall have been acquired.

The judgment of the lower court is affirmed.

Sub-Section C.

THE POWER TO MAKE ALL LAWS NECESSARY AND PROPER FOR

CARRYING INTO EXECUTION THE ENUMERATED POWERS.

McCulloch v. Maryland. See page 50.

Gibbons v. Ogden. See page 72.
Julliard v. Greenman. See page 232.

Section 7.

RESTRICTIONS ON THE POWERS OF CONGRESS.

Sub-Section A.

THE BILL OF RIGHTS.

BARRON V. BALTIMORE.

7 Pet. 243. 1833.

Barron brought suit against the City of Baltimore to recover damages for injuries to certain wharf property owned by him in Baltimore. The value of his deep water wharf had been destroyed by a sand bar created in front it, in consequence of a change of water currents in the harbor. It appeared that the City of Balti

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