In re Chow Bick Git

OPINION OF

CHIEF JUSTICE HARRIS.

I have listened to the arguments on the appeal and have duly weighed them, and see no reason for. changing my opinion previously expressed,

Honolulu, April 25, 1881.

opinion OF

MR, JUSTICE JUDDi

While fully agreeing with the conclusions arrived at by the learned Chief Justice in this case, I deem it proper to add this statement of my views. It is a well established principle *395conceded by all jurists, that every independent State has, as an attribute of sovereignty, the right to altogether prohibit the entrance into its territory of strangers. Therefore treaties generally contain provisions conceding to the citizens of each contracting power the right to enter and reside in the territory of the other. ,

The fact that motives of policy have generally dictated that this right he not exercised, does not militate against the existence of the right.

A fortiori, then, the State has a right to impose such terms and conditions precedent to the entry of foreigners within its borders as in its opinion are essential to its welfare, peace and good government.

I see no reason why a sovereign State may not prescribe these terms, even in .the absence of municipal law declaring what they shall be. The State may say to those who seek to become residents within its territory, “ We will admit you, providing you accede to these terms which we deem to be reasonable and necessary.” In the absence of law the State could not euforee these stipulations through its Courts, but if it possessed sufficient material strength, the naked right of the State to use the same to prevent the unauthorized and unwelcome entrance of foreigners is undoubted.

The right of a State as affecting the citizens of other States does not depend upon its own municipal law — the law only indicates and expresses the way in which these rights are to be exercised. The ordinance in the case before us does not create the right of this Kingdom to regulate and control immigration.

The first question is whether the ordinance possesses legal validity; if it does, then the power to restrain the petitioners from coming in among us as residents, until its provisions are complied with, must be sustained by the Court.

The objection is made that this ordinance is not made by the law-making power of this Kingdom, which by the Con*396stitution is vested in the Legislature, and that the Legislature cannot delegate this power to the Privy Council.

I do not see how the Acts of 1864 and 1868, empowering His Majesty in Privy Council, on the recommendation of the Board of Immigration, to make rules and regulations for the good government and control of immigrants, can be construed to be a delegation of legislative authority any more than the Acts empowering the Board of Health to make regulations respecting nuisance, interments of the dead and quarantine, or the Acts which authorize the Board of Education to adopt rules for the internal regulation and government of public schools, are delegations of the law-making power.

As regards the Board of Health, considering the variable nature of the circumstances affecting the public health from time to time, there must be lodged somewhere the authority to make regulations or ordinances suited to the special exigency as it arises, and to repeal them when the occasion no .longer exists. The varying and often transitory nature of the difficulties to be met with in regard to immigration call with •equal force for the creation of an authority to make such regulation as from time to time the necessities of the ease require, ■ and to repeal or modify the same as further developments may seem to demand.

If the contrary opinion should hold, the government Would ’be obliged to await the meeting of the Legislature, which is convened only biennially, before a regulation could be made to meet circumstances easily conceived of, of a 'most pressing character, often to the health or safety of the citizens of this Kingdom.

Snch regulations made by the various Boards and Department of this Government in pursuance of law, must not be inconsistent with any existing law or unreasonable or unjust.

But it is further objected that the ordinance in question is not authorized by the terms of the law, and particularly because the petitioners are not of the class or description of *397immigrants for the good government and control of which the Act of 1868 authorized ordinances to be made.

It must be borne in mind that the Act of 1864 already conferred the power on the Privy Council to “ adopt such measures and regulations as may be deemed expedient to promote and encourage the introduction of free '(that is, Unin-dentured) immigrants from abroad,” and the Act of 1868 extended these powers by making it -the duty of the designated authority “to adopt such rules and regulations as may be deemed necessary for the good government and control of immigraifts that have been brought or admitted, or that may be brought or admitted into this Kingdom as servants or laborers under -license or permission from the Bureau of Immigration, or contract with the Minister of the Interior.” These petitioners answer the description so far as they are immigrants brought or admitted here “as servants or laborers.” They do not come “under contract with the Minister of the Interior,” and it is said that they are not admitted under “ license or permission from the Bureau of Immigration,” and, therefore, the authority to make regulations for their good government and control does not exist. It is true that at the time when these laws were enacted, immigration from foreign countries was quite limited, and it mainly consisted of those who came under contracts or indentures made in their own country either with the Minister of the Interior or with private individuals, but as the Act of 1874 gave the general superintendence of the importation of foreign laborers and the introduction of immigrants to the Bureau of Immigration, and authorized the Board to adopt measures and regulations for the encouragement of free immigration, I think it is a fair inference to draw that all immigrants coming hither as servants or laborers come under the license or permission either express or implied of this Board. The fact that of late no express licenses or permission have been required to be taken out for the admission of immigrants does not prevent *398■the Board, of Immigration from now prescribing through this ordinance, upon what conditions their admission to this country may be permitted.

The ordinance is not repugnant to fundamental right, nor is it inconsistent with any law of this Kingdom, and it is in my opinion reasonable and easy to be complied with by all who it is likely will be a desirable class of residents for this country.

Honolulu, April 25, 1881.

OPINION OK

MR. JUSTICE McOUELS.

Without writing an opinion at length argumentatively and with reference to authorities, in view of the full opinions filed by the Chief Justice and the First Associate, with which I agree, I hold—

1. That it is clearly of the sovereign right of a State to bar admission t.o its ¿territory of the citizens of other States with whom it has no treaty stipulating otherwise, and that it is of the same right to make its own terms of admission if such shall be admitted.

2. That this Kingdom has delegated this right in respect to persons of the description of the immigrants by the Séptima to the Board of Immigration, and that its ordinances are, therefore, legal and constitutional,

3. That the landing of these persons, under the conditions aud circumstances and with the limitations previously made, was not for the purposes of this case, an admission within the Kingdom.

-4. And that setting a guard to make the barring out effectual, to prevent their actual entry at large within this territory was net a restraint upon their liberty. In other words, that persons legally barred from entering the Kingdom, cannot be brought in by'writ of habeas corpus*

Honolulu, April 25, 1881.