Weedin

The question before us is whether or not the District Judge erred in discharging, on habeas corpus, appellee, whose claim to admission into this country, as the eoncedodly minor son of a lawfully domiciled Chinese merchant, had been denied by the board of special inquiry and, on appeal, by the Secretary of Labor, because he was without “a passport or any official document in the nature of a passport, visaed or authenticated by an American Consular officer.” The District Judge’s decision was based upon the Treaty of 1880 with China ( 22 Stat. 826 ), which he held could not be annulled by presidential proclamation or departmental rule, but only by legislation evidencing a clear intent to abrogate or to disregard the treaty provisions.

In re Cheung Sum Shee v. Nagle, 268 U. S. 336, 45 S. Ct. 539, 540 , 69 L. Ed. 985 (1925), held that under the treaty the wife and minor children of a resident Chinese merchant had had the right of entry prior to the Immigration Act of 1924 ( 43 Stat. 153 ), though only the “merchant” and not the wife or child was specifically mentioned in the treaty, citing with approval United States v. Gue Lim, 176 U. S. 459 , 20 S. Ct. 415, 44 L. Ed. 544 .…