were

immigration treaty between the United | defendant before the commissioner States and China, signed at Peking on the without authority of law; for the treaty it17th day of November, 1880 (the 15th day self does not provide any particular method of the tenth month of Kwanghsii, sixth by which Chinese laborers may be prevented year), it is hereby understood and agreed from entering the United States, or for sendthat Chinese laborers or Chinese of any oth- ing them out of the country if they illegally er class, either permanently or temporarily enter, although both nations expressed in residing in the United States, shall have for the treaty a desire to co-operate in preventthe protection of their persons and property ing the immigration or coming to this counall rights that are given by the laws of the try of such persons. China itself recognized United States to citizens of the most favored it to be its duty to co-operate with the Unitnation, excepting the right to become natu-ed States to that end, "in view of the antagoralized citizens. And the government of the United States reaffirms its obligation, as stated in said article 3, to exert all its power to secure protection to the persons and property of all Chinese subjects in the United States.

"Art. V. The government of the United States, having by an act of Congress, approved May 5th, 1892, as amended by an act approved November 3d, 1893, required all Chinese laborers lawfully within the limits of the United States before the passage of the first-named act to be registered as in said acts provided, with a view of affording them better protection, the Chinese government will not object to the enforcement of such acts, and reciprocally the government of the Untied States recognizes the right of the government of China to enact and enforce similar laws or regulations for the registration, free of charge, of all laborers, skilled or unskilled (not merchants as defined by said acts of Congress), citizens of the United States in China, whether residing within or without the treaty ports. And the government of the United States agrees that within twelve months from the date of the exchange of the ratifications of this convention, and annually thereafter, it will furnish to the government of China registers or reports showing the full name, age, occupation, and number or place of residence of all other citizens of the United States, including missionaries, residing both within and without the treaty ports of China, not including, however, diplomatic and other officers of the United States residing or traveling in China upon official business, together with their body and household servants.

nism and much deprecated and serious disorders to which the presence of Chinese laborers has given rise in certain parts of the United States." As both countries were agreed that this result should be attained, the court ought to hesitate to adopt any construction of the treaty that would tend to defeat the object each had in view. We must assume that the two governments knew that a general prohibition of the coming of Chinese laborers to the United States would be ineffectual if no provision were made for determining whether a particular Chinaman seeking to enter the country, and whose right to enter was denied, belonged to the class prohibited from coming within our territorial limits.

It is not disputed that such provision exists if § 12 of the act of May 6th, 1882, as amended by the act of July 5th, 1884, and as continued in force by the act of May 5th, 1892, be held not to have been repealed or superseded by the treaty of 1894.

That it was competent for the two countries by treaty to have superseded a prior act of Congress on the same subject is not to be doubted; for otherwise the declaration in the Constitution that a treaty, concluded in the mode prescribed by that instrument, shall be the supreme law of the land, would not have due effect. As Congress may by statute abrogate, so far at least as this country is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same subject. In Foster v. Neilson, 2 Pet. 253, 314, 7 L. ed. 415, 435, it was said that a treaty was "to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." In the case of The Cherokee Tobacco, 11 Wall. 616, 621, sub nom. 207 Half Pound Papers Smoking Tobacco v. United States, 20 L. ed. 227, 229, this court said "a treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty." So, in the Head Money Cases, 112 U. S. 580, 599, sub nom. Edye v. Robertson, 28 L. ed. 798, 804, 5 Sup. Ct. Rep. 247, 254, this court said: "So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its en*If the words of the treaty of 1894, reason-forcement, modification, or repeal." Again, ably interpreted, indicate a purpose to cover the whole subject of Chinese exclusion, including the methods to be employed to effect that result, then the proceedings against the

"Art. VI. This convention shall remain in force for a period of ten years, beginning with the date of the exchange of ratifications, and if, six months before the expiration of the said period of ten years, neither government shall have formally given notice of its final termination to the other, it shall remain in full force for another like period of ten years." 28 Stat. at L. 1210.

The first proposition made on behalf of the defendant is that the treaty of 1894 should be construed as covering the whole subject of Chinese exclusion, and that its failure to prescribe any judicial procedure for deportation, or to continue in force any prior statute on that subject, shows that the commissioner was without jurisdiction.

in Whitney v. Robertson, 124 U. S. 190, 194, 31 L. ed. 386, 388, 8 Sup. Ct. Rep. 456, 458: "By the Constitution a treaty is placed on the same footing, and made of like obliga

2

sired to accomplish. This is so clearly manifest that argument cannot, as we think, make it more so.

tion, with an act of legislation. Both are | If not repugnant to the Constitution, it is declared by that instrument to be the su- made by that instrument a part of the su preme law of the land, and no superior effi- preme law of the land, and should never be cacy is given to either over the other. When held to be displaced by a treaty, subsequentthe two relate to the same subject, the courts ly concluded, unless it is impossible for both will always endeavor to construe them so as to stand together and be enforced. So far to give effect to both, if that can be done from there being any inconsistency between without violating the language of either; the statute and treaty here in question, the but if the two are inconsistent, the one last 12th section of the act of 1882, as amended in date will control the other, provided al- in 1884, and continued in force for ten years ways that the stipulation of the treaty on from and after the passage of the act of the subject is self-executing." See also Tay- 1892, is in absolute harmony with the treaty, lor v. Morton, 2 Curt. C. C. 454, 459, Fed. and can be enforced without affecting or im Cas. No. 13,799; Clinton Bridge Case, pairing any right secured by the treaty. On Woolw. 155, Fed. Cas. No. 2,900; Ropes v. the contrary, the enforcement of that section Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; as amended will serve to advance the pur2 Story, Const. § 1838. Nevertheless, the pose of the two countries in respect of Chipurpose by statute to abrogate a treaty or nese laborers, as avowed in the treaty of any designated part of a treaty, or the pur- 1894. Despite the ingenious argument to pose by treaty to supersede the whole or a the contrary, we do not perceive any diffipart of an act of Congress, must not be light-culty whatever in reaching this conclusion, ly assumed, but must appear clearly and dis- after carefully scrutinizing the treaty and tinctly from the words used in the statute the statute. A different conclusion would be or in the treaty. hostile to the objects which, as avowed in the In the case of statutes alleged to be incon-treaty, both the United States and China desistent with each other in whole or in part, the rule is well established that effect must be given to both, if by any reasonable interpretation that can be done; that "there must be a positive repugnancy between the provisions of the new laws and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy:" and that "if harmony is impossible, and only in that event, the former law is repealed, in part or wholly, as the case may be." Wood v. United States, 16 Pet. 342 363, 10 L. ed. 987, 995; United States v. Tynen, 11 Wall. 88, 93, 20 L. ed. 153, 154; South Carolina v. Stoll, 17 Wall. 425, 431, 21 L. ed. 650, 654. In Frost v. Wenie, 157 U. S. 46, 58, 39 L. ed. 614, 619, 15 Sup. Ct. Rep. 532, 537, this court said: "It is well settled that repeals by implication are not to be favored. And where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court-no purpose to repeal being clearly expressed or indicatedis, if possible, to give effect to both. In other words, it must not be supposed that the legislature intended by a later statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and, therefore, to displace the prior statute."

The question certified is answered in the negative, and an order so declaring will be sent to the Circuit Court of Appeals.

Mr. Justice Gray did not hear the argument, and took no part in the decision.

(185 U. S. 236)

UNITED STATES, Appt.,

v.

JOSEPH C. FINNELL

Clerks of court-per diem compensationstatutes departmental construction.

A

clerk of a district and circuit court of the United States must be deemed entitled to the per diom compensation recognized as his right by the act of March 3, 1887, chap. 362 (24 Stat. at L. 509, 541), "when the court is open for business or business is actually transacted in court," for those days on which, in the absence of any judge, he entered on the journal certain orders, decrees, and other proceedings transmitted to him for that purpose by the different judges composing the courts of such district, since to decide otherwise would be to overrule a uniform construction given to this statute by the Treasury Department, which is not obviously or clearly wrong, but is, at the most, subject to a doubt of its soundness.

The same rules have been applied where the claim was that an act of Congress had abrogated some of the provisions of a prior treaty between the United States and China. Chew Heong v. United States, 112 U. S. 536, 550, 28 L. ed. 770, 774, 5 Sup. Ct. Rep. 255. In that case it was held that the treaty Submitted could stand with the subsequent statutes, and, consequently, it was enforced.

Like principles must control when the

question is whether an act of Congress has been superseded in whole or in part by a subsequent treaty. A statute enacted by Congress expresses the will of the people of the United States in the most solemn form.

APPEAL from the Court of Claims to review a judgment allowing per diem compensation to a clerk of a District and Circuit Court of the United States. Affirmed.

The facts are stated in the opinion.

"2. During said period he entered orders, decrees, and other proceedings of the court on 199 days, extending through said time. None of the judges of said courts were personally present at the time of the entry of such orders, decrees, and proceedings, but said orders, decrees, and proceedings were transmitted to the claimant by mail by the different judges composing the courts of said "3. Claimant made his account for said district. Said orders, decrees, and proceed-services as attendance on court when the ings were indorsed: 'Enter this order' same was opened and adjourned by order of (signed by the judge); or, 'Enter this' the judge, and while the same was actually (signed by the judge); or, 'Enter' (signed in session and business actually transacted,

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which was verified and presented to the United States court for approval in the presence of the district attorney, and orders approving the same as being just and according to law were entered of record. Said accounts were then presented to the account ing officers of the Treasury Department for payment, and payment of fees as per diems in finding 4 was refused.

"4. Item 1. Per diems for attendance on court on the days on which said orders, decrees, and other proceedings were entered, 199 days, at $5 per day, $995.

"5. Charges for similar services have been made by the claimant in every account rendered since 1882, and were always allowed and paid by the accounting officers of the Treasury up to June 30th, 1893."

certified in the approval of their accounts." 24 Stat. at L. 509, 541.

The sections of the Revised Statutes re-ferred to in the act of 1887 are as follows: "g 583. If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or special term, the court may be adjourned by the marshal, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct.

"§ 584. If the judge of any district court, in Alabama, California, Georgia, Indiana, Iowa, Kentucky, North Carolina, Tennessee, or West Virginia is not present at the time for opening the court, the clerk may open and adjourn the court from day to day for four days; and if the judge does not appear by 2 o'clock after noon of the fourth day, the clerk shall adjourn the court to the next regular term. But this section is subject to the provisions of the preceding and next sec tions."

By § 828 of the Revised Statutes, a clerk of a circuit or district court of the United States was allowed "$5 a day for his attendance on the court while actually in session." *This section was similar to one in the act of February 26th, 1853, chap. 80 (10 Stat. "§ 671. If neither of the judges of a cirat L. 161, 163). Under that act clerks were cuit court is present to open any session, the allowed $5 a day for attendance only, wheth-marshal may adjourn the court from day to er business was transacted or not by the day until a judge is present: Provided, court. After many years had expired, Comp- that if neither of them attends before the troller of the Treasury Durham held that in- close of the fourth day after the time apterpretation of the statute to be erroneous, pointed for the commencement of the session, and ruled that the transaction of business the marshal may adjourn the court to the was a condition precedent to the right to a next regular term. per diem compensation for attendance, al- "§ 672. If neither of the judges of a cirthough the court may have been, in fact, reg-cuit court be present to open and adjourn ularly opened for business, and awaited the any regular or adjourned or special session, coming of suitors. But the court of claims either of them may, by a written order, diheld, in 1885, that the Comptroller was in rected alternatively to the marshal, and, in error, and adjudged that within the mean- his absence, to the clerk, adjourn the court ing of § 828 the clerk was entitled to $5 a from time to time, as the case may require, day for his attendance on court, even when to any time before the next regular term." no business was transacted. Jones v. United "S 2013. The circuit court, when opened States, 21 Ct. Cl. 1. by the judge as required in the two precedThe judgment of that court did not, how-ing sections, shall, therefrom and thereafter, ever, put the matter at rest; for, by the sundry civil appropriations act of August 4th, 1886, chap. 902, it was provided that no part of the money appropriated by that act should "be used in payment of a per diem compensation to any clerk or marshal for attendance in court, except for days when business is actually transacted in court, and when they attend under §§ 583, 584, 671, 672, and 2013 of the Revised Statutes, which fact shall be certified in the approval of their accounts." 24 Stat. at L. 222, 253. That act, by its terms, was temporary.

At the subsequent session of Congress the subject was again considered, and resulted in a permanent provision to be found in the sundry civil appropriations act of March 3d, 1887, chap. 362. By that act it was provided "that hereafter no part of the appropriations made for the payment of fees for United States marshals or clerks shall be used, nor shall any part of any money appropriated be used in payment of a per diem compensation to any attorney, clerk, or marshal for attendance in court, except for days when the court is opened by the judge for business, or business is actually transacted in court, and when they attend under §§ 583, 584, 671, 672, and 2013 of the Revised Statutes, which facts shall be

and up to and including the day following the day of election, be always open for the transaction of business under this title, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time; and a judge sitting at chambers shall have the same powers and jurisdiction, including the power of keeping order and of punishing any contempt of his authority, as when sitting in court."

Section 2013 had reference to the functions of the circuit court in election matters, and has been repealed.

The account here in suit is not for the attendance of the clerk under §§ 583, 584, 671, and 672, but for attendance under §§ 574 and 638, which are hereafter given in this opinion.

It will be observed that the act of 1887 recognizes the right of the clerk to a per liem compensation in two states of case, namely, "when the court is opened for business, or business is actually transacted in court."

What do those words mean? We are informed by the representatives of the govern ment that for nearly forty years prior to 1886 it had been the practice of its accounting officers to allow a per diem compensa'tion to clerks for attendance, when court

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may be transacted under the orders of the judge, who may at the time be absent from the place, room, or building in which the court is held. The business transacted by the appellee was such as could be transacted by the clerk under the orders of the judge. It is too narrow an interpretation of the statute to hold that such business was not actually transacted in court. This whole subject was carefully considered, and the statutes relating to it fully analyzed, by Judge Baker in Butler v. United States, 87 Fed. 655.

was opened by the judge and adjourned without transacting any business; and that such practice had been sanctioned by an unbroken line of decisions in the Federal courts. And it is suggested that the purpose of the act of 1886 was to break up that practice. All this only serves to prove that Congress used the words found in the act of 1887 with full knowledge of the former practice, and of the change made, or supposed to be made, by the act of 1886. It is clear that the words used, reasonably interpreted, indicate a purpose to allow the per diem compensation for attendance as well when the court was opened These views are justified by long practice for business, whether any business was actu- in the Department, and upon that we may ally transacted or not, as when business was properly rest our affirmance of the judgment actually transacted in court. It is said that of the court of claims. It is found as a fact no business could be lawfully transacted "in that the present appellee, in every account court" unless the judge was personally pres- rendered by him since 1882, has charged for ent. We do not assent to that view. It services similar to those set out in the acrests upon a construction which is too liter-count here in suit, and such accounts were al. The services for which Finnell's account uniformly allowed and paid up to June 30th, was rendered constituted business actually 1893. And on his account for the period transacted in court, unless it be that a clerk could never enter any order unless the judge was, at the time, in the place, room, or building where his court was ordinarily held. But we cannot so adjudge. There are many things that may be legally done by a clerk pursuant to the written order of a judge sent to him, and which, being done, may be fairly held to constitute business "actually transacted in court." This much is to be implied from §§ 574 and 638 of the Revised Statutes, which are as follows:

" 574. The district courts, as courts of admiralty and as courts of equity, so far as equity jurisdiction has been conferred upon them, shall be deemed always open, for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing upon their merits of all causes pending therein. And any district judge may, upon reasonable notice to the parties, make, and direct and award, at chambers, or in the clerk's office, and in vacation, as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court."

"S 638. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing upon their merits of all causes pending therein. And any judge of a circuit court may, upon reasonable notice to the parties, make, and direct and award, at chambers or in the clerk's office, and in vacation, as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court."

As will be seen from those sections, the district and circuit courts of the United States are always open for the transaction of certain kinds of business which, we think,

from January 1st, 1892, to June 30th, 1894, he obtained judgment in the court of claims, which judgment was paid,-no appeal having been prosecuted by the United States. Finnell v. United States, 32 Ct. Cl. 634. It thus appears that the government has for many years construed the statute of 1887 as meaning what we have said it may fairly be interpreted to mean, and has settled and closed the accounts of clerks upon the basis of such construction. If the construction thus acted upon by accounting officers for so many years should be overthrown, we appre hend that much confusion might arise. Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it would be the duty of the court to so adjudge. United States v. Graham, 110 U. S. 219, 28 L. ed. 126, 3 Sup. Ct. Rep. 582; Wisconsin C. R. Co. v. United States, 164 U. S. 190, 41 L. ed. 399, 17 Sup. Ct. Rep. 45. But if there simply be doubt as to the soundness of that construction,— and that is the utmost that can be asserted by the government,-the action during many years of the Department charged with the execution of the statute should be respected, and not overruled except for cogent reasons. Edwards v. Darby, 12 Wheat. 206, 210, 6 L ed. 603. 604; United States v. Philbrick, 120 U. S. 52, 59, 30 L. ed. 559, 7 Sup. Ct. Rep. 413; United States v. Johnston, 124 U. S. 236, 253, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; United States v. Alabama G. S. R. Co. 142 U. S. 615, 621, 35 L. ed. 1134, 12 Sup. Ct. Rep. 306. Congress can enact such legisla tion as may be necessary to change the existing practice, if it deems that course conducive to the public interests.

The judgment of the Court of Claims is affirmed.

Mr. Justice Gray took no part in this decision.

Mr. Justice Brown dissenting:

From the passage of the act of 1791, fixing the compensation of officers of the courts of the United States, the subject of fees for attendance upon the circuit and district