doubtful cases." Thus it was settled that because the action of the Postmaster General "is subject to revision by the judicial department of the government in cases where the postmaster has exceeded his authority under the statute," the absence of any provision for a judicial hearing on the question of legality does not render such statute or statutes repugnant to the due process of law clause of the Federal Constitution.

§ 63. U. S. ex rel. Turner v. Williams 15-Due process as a limitation on power to exclude alien anarchists. In his petition for habeas corpus Turner alleged: "Second. Your relator is so imprisoned by virtue of a warrant sworn out by the Secretary of the Department of Commerce and Labor, which warrant charges your relator. with being an anarchist, and being unlawfully within the United States, in violation of 2 and 20 of the immigration laws of the United States, as amended by act of March 3, 1903 (32 Stat. at L. 1213, chap. 1012). Third. Upon information and belief, that a special board of inquiry, consisting of Charles Dempsey, Captain Weldon, supervising inspector, and L. C. Stewart, all of whom are executive officers of the United States, has inquired into your relator's case, and decided that your relator is an anarchist, and is in the United States in violation of law, within the meaning of the act of March 3, 1903." Petitioner claimed that said act is unconstitutional because in contravention of the 1st, 5th and 6th articles of amendment of the constitution, and of § 1 of article 3 of that instrument; and because no power "is delegated by the Constitution to the general government over alien friends with reference to their admission into the United States or otherwise, or over the beliefs of citizens, denizens, sojourners, or aliens, or over freedom of speech or the press. In overruling that contention the Court said: "Repeated decisions of this court have determined that Congress has the power to exclude

15-194 U. S. 279.

aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers; that the deportation of an alien who is found to be here in violation of law not a deprivation of liberty without due process of law, and that the provisions of the Constitution securing the right to trial by jury have no application. Chae Chan Ping v. United States, 130 U. S. 581; Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538; Wong Wing v. United States, 163 U. S. 228; Fok Yung Yo v. United States, 185 U. S. 296; Japanese Immigrants Case, 189 U. S. 86; Chin Bak Kan v. United States, 186 U. S. 193; United States v. Sing Tuck, 194 U. S. 161. In the present case alienage was conceded, and was not in dispute, and it was the question of fact thereupon arising that was passed on by the board, and by the Secretary on appeal. Whether rested on the accepted principle of international law, that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe; or on the power to regulate commerce with foreign nations, which includes the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States, the act before us is not open to constitutional objection. And while we held in Wong Wing v. United States, 163 U. S. 228, a certain provision of an immigration law invalid on that ground, this act does not come within the ruling. We do

not feel called upon to reconsider these decisions, and they dispose of the specific contentions as to the application of the 5th and 6th Amendments, and § 1 of article 3,

and the denial of the delegation to the general government of the power to enact this law."

§ 64. Shepard v. Barron 16-When estoppel to contest constitutionality may be set up against promoters of public improvement. The plaintiffs in this case filed a bill in a Circuit Court of the United States attacking the validity of an act of the legislature of Ohio on the ground that the frontage rule of assessment fixed by the Statute under which the improvement was made operated as a denial of due process of law. In the words of the Supreme Court: "But the plaintiffs also insist that the act is void as a violation of the 5th and 14th Amendments to the Federal Constitution. The assessment per front foot, it is contended, leads in this case to a confiscation of the property of the plaintiffs, and is not based upon the fact of benefits received, and it results in a taking of the property of plaintiffs without due process of law." When that contention was met by the plea that the abutting owners who petitioned for the improvement were estopped by their recognition of the justice of the assessment, and by their active participation in carrying on the work, the Court sustained it, saying: "Where, as in this case, the work is done and the assessment made at the instance and request of plaintiffs and the other owners, and pursuant to an act (in form at least) of the legislature of the state, and in strict compliance with its provisions and with the petition of the landowners, there is an implied contract arising from such facts that the party at whose request and for whose benefit the work has been done will pay for it in the manner provided for by the act under which the work was done. principles of general law, we are satisfied that the plaintiffs are not in a position to assert the unconstitutionality of the act under which they petitioned that proceedings should be taken. In Wight v. Davidson, 181 U. S. 371, this court, while not positively deciding

16-194 U. S. 553.

On

the proposition, yet strongly intimated, that by reason of the acts of appellees they were not in a position to question the validity of the statute there under consideration."

§ 65. Fayerweather v. Ritch 17-Relation of due process to res judicata. In this case it was held that where a Federal court gives effect to the judgment of a state court, as res judicata, in the face of a claim that such judgment deprived the parties of their property under forms of law, while failing to provide a judicial finding of the essential facts that alone could have justified such deprivation, the application of the due process of law clause of the Federal Amendment is so involved as to justify a direct appeal to the Supreme Court. After stating the facts, that Court said: "The contention is that, by article 5 of the Amendments to the Federal Constitution, no person can 'be deprived of life, liberty, or property, without due process of law;' that these plaintiffs were entitled to large shares of the estate of Daniel B. Fayerweather; that they were deprived of this property by the judgment of the circuit court, which gave unwarranted effect to a judgment of the state courts; that this action of the circuit court is not to be considered a mere error in the progress of a trial, but a deprivation of property under the forms of legal procedure. In Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, we held that a judgment of a state court might be here reviewed if it operated to deprive a party of his property without due process of law, and that the fact that the parties were properly brought into court and admitted to make defense was not absolutely conclusive upon the question of due process. If a judgment of a state court can be reviewed by this court on error upon the ground that, although the forms of law were observed, it necessarily operated to wrongfully deprive a party of his property (as indicated by the decision just referred to), a

17-195 U. S. 276.

judgment of the circuit court of the United States, claimed to give such unwarranted effect to a decision of a state court as to accomplish the same result, may also be considered as presenting the question how far it can be sustained in the view of the prohibitory language of the 5th Amendment, and thus involve the application of the Constitution."

§ 66. McCray v. U. S.18-Due process and constitutionality of oleomargarine tax. The essence of plaintiff in error's contention was thus stated: "The district court erred in refusing to hold that the act of Congress approved August 2, 1886, as amended by the act of Congress approved May 9, 1902, is in contravention of the Constitution of the United States of America, and of the Amendments thereto, and is illegal and void, for the reasons: (a) The act deprives the defendant of his property without due process of law. (b) The act is an unwarranted encroachment upon, and an interference with the police powers reserved to the several states and to the people of the United States. (c) The act so arbitrarily discriminates against oleomargarine in favor of butter as to destroy the oleomargarine industry for the benefit of the butter industry of the United States, and is thus repugnant to those fundamental principles which are inherent in the Constitution of the United States. The district court erred in holding, if said act be not in contravention of the Constitution of the United States, that oleomargarine, which contains no artificial coloration than that imparted to it by the use of butter which itself contains coloring matter, and which therefore causes said oleomargarine to look like butter of a shade of yellow, is subject to a tax of 10 cents per pound instead of a tax of one-fourth of 1 cent per pound." In reaching the conclusion "that the manufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental

18-195 U. S. 27.