The question here arising in regard to the correctness of the decision of the district court in the case of the married woman depends for its solution upon the construction to be given to the 6th section of the act of Congress of 1884 (23 Stat. at L. 115, chap. 220), which is set forth in the margin.
That section must be construed in connection with the treaty concluded between this country and China in November, 1880. 22 Stat. at L. 826.
It is contended on the part of counsel for the government that by the subsequent treaty of March, 1894 (28 Stat. at L. 1210), the two governments have agreed that the requirements of a certificate as provided for in the 6th section of the act of Congress shall apply to all permitted Chinese subjects who must, without exception, produce such certificates. Article two of the treaty of 1880 and article three of the treaty of 1894 are set out in the margin.
We do not think the treaty of 1894 alters the result flowing from the treaty of 1880 and the act of 1884. The question is, whether under the act of 1884, construed in connection with the treaty of 1880, the wife of a Chinese merchant, domiciled in this country, may enter the United States without a certificate, because she is the wife of such merchant.
Although the third article of the treaty of 1894 does speak of certificates for Chinese subjects therein described, who already enjoy the right to enter the country, the question recurs whether the certificate of the husband who himself enjoys the right is not enough for the wife, the fact being proved or admitted that she is such wife. Possibly the result of the treaty of 1894 may be held to be, instead of simply prohibiting the entrance of Chinese laborers, to restrict the right of entry to those classes who are specially named in the third article of the treaty. But the question would still remain whether the wives of the members of the classes privileged to enter were not entitled themselves to enter by reason of the right of the husband and without the certificate mentioned in the act of 1884.
There has been some difference of opinion among the lower courts as to the true construction to be given to the treaty and the act of Congress. The judges in some cases have taken the view that the wife and minor children of a Chinese merchant, who is himself entitled, under the second article of the treaty of 1880 and § 6th of the act of 1884, to come within and dwell in the United States, were entitled to come into the country with him or after him as such wife and children without the certificate prescribed in that section. Other judges have held that they were not entitled to enter the country without the production of the certificate mentioned in the act.
Those cases holding the right of the wife to enter without a certificate are Re Chung Toy Ho, 42 Fed. Rep. 398, 9 L. R. A. 204, in the circuit court, district of Oregon, May 1890, in which case the opinion was delivered by Judge Deady; Re Lee Yee Sing, 85 Fed. Rep. 635, decided in 1898 in the district court for the state of Washington; also in this case, United States v. Gue Lim, 83 Fed. Rep. 136, district court of Washington, 1897.
Those adverse to the doctrine are Re Ah Quan, 21 Fed. Rep. 182, 186, decided in 1884 in the circuit court, district of California; Re Ah Moy, 21 Fed. Rep. 785, in the same court, September, 1884; Re Wo Tai Li, 48 Fed. Rep. 668, in the district court, northern district of California, August, 1888; Re Lum Lin Ying, 59 Fed. Rep. 682, district court of Oregon, February, 1894; Re Li Foon, 80 Fed. Rep. 881, circuit court, southern district of New York, 1897.
Some of the latter cases do not involve the exact point now before the court, but they are in the direction stated.
It is not necessary to review these cases in detail. It is sufficient to say that we agree with the reasoning contained in the opinion delivered by Judge Deady. Re Chung Toy Ho, 42 Fed. Rep. 398, 9 L. R. A. 204. In our judgment the wife in this case was entitled to come into the country without the certificate mentioned in the act of 1884.
The act of 1882, of which that of 1884 was an amendment, was passed, as is stated in its title, 'to execute certain treaty stipulations relating to Chinese,' and therefore we must assume that the body of the act has that purpose.