Ex parte Momo Tomimatsu , 232 F. 376 ( 1916 )

DOOLING, District Judge.

[1] Petitioner, a Japanese woman, came here with a passport from the Japanese government, to join her husband, who is a Japanese domiciled in this country. She was refused admission by a board of special inquiry because afflicted with trachoma, a dangerous contagious disease. It is urged on her behalf that this board was not legally constituted, because its members were not all immigration officials; one of them being a clerk in the immigration service. Section 25 of the Immigration Act provides:.

“Each board [of special inquiry] shall consist of three members, who shall he selected from such of the immigrant officials in the service as the Commissioner General of Immigration * * * shall from time to Lime designate as qualified to serve on such boards: Provided, that at ports where there are fewer than three immigrant inspectors, the Secretary of Rabor * * * may designate other United States officials for service on such boards.” Comp. St. 1913, § 4274.

At San Francisco, where the board of inquiry in the present case acted, there are more than three immigrant inspectors. It is to be noted that the members of such boards are not necessarily to be selected from immigrant inspectors, but from immigrant officials. Section 24 of the same act makes a distinction between immigration officers and clerks by the use of the following language:

"immigrant inspectors and other immigration officers, clerks, and employes shall hereafter be appointed,” etc. Comp. St. 19.13, § 4273.

But section 25, which provides for the creation of boards of special inquiry, does not use the word “officers,” but the word “officials.” And while the act does distinguish between officers and clerks, there is nothing therein to indicate that the words “immigrant officials in the service” may not include clerks. Congress, having used the word “officers” throughout section 24, substitutes the word “officials” in the next section, when providing for the creation of boards of special inquiry. I am not prepared to sáy that this was not done'designedly, and because of an intended distinction between the meanings of the two words as thus employed. The department having regarded a clerk as an official within the meaning of section 25, I cannot import the word “officer” from the preceding section, where alone the distinction between officer and clerk is indicated.

[2] It is further claimed that petitioner’s application for hospital treatment was not properly forwarded. But petitioner was not entitled to hospital treatment as a matter of right, under section 37, as her husband had not filed his declaration of intention to become a citizen, and indeed , was incapable of so doing. In any event a sufficient synopsis of thé application for hospital treatment was telegraphed to the Secretary to enable him to grant the application, had he so desired. The petitioner is not injured by a failure to comply strictly with a rule made to cover cases falling within the statute, and designed only for the benefit of the wives of such aliens as have declared their intention to become citizens.

The petition for writ will therefore be denied, and the petitioner remanded.