collected but were entitled to have all the revenues accruing to the island, from whatever sources, applied to the pacific object of the occupation. The petition was accordingly dismissed.

CHARLES F. WYMAN, PETITIONER; JOHN W. M'EVOY, PUBLIC ADMINISTRATOR, V. CHARLES F. WYMAN. 1906

191 Mass. 276

Executor and Administrator-Constitutional Law-Treaty-Russia. Under the existing treaties, which are the supreme law of the land, the petition of the consular representative of the empire of Russia for this commonwealth, to be appointed administrator of the estate of a Russian subject who died here, must be granted against the objection of the public administrator.

Two appeals, from decrees of the probate court for the county of Middlesex.

Julius Saposnick, alias Sapoznik, alias Sapognick, died intestate in Cambridge in the county of Middlesex, on July 9, 1902, leaving personal property to be administered upon in that county. He was a citizen and subject of the empire of Russia and left in the United States no widow, heirs at law or next of kin; but left in Vilna, Russia, a widow and three minor children.

Charles F. Wyman of Cambridge is vice-consul of the empire of Russia at Boston, Massachusetts, and the consular representative of that empire for the commonwealth of Massachusetts. On May 12, 1903, as such vice-consul he filed a petition to be appointed administrator of the estate of Julius Saponznick, above named, claiming the right to administer the estate under the treaty between the United States and the empire of Russia.

On May 27, 1903, John W. McEvoy, public administrator for the county of Middlesex, filed a petition to be appointed administrator of the estate of the same man.

In the probate court, McIntire, J., dismissed the petition of the Russian vice-consul, stating in his decree,

it not appearing that he has a legal right to be appointed administrator of the said estate to the exclusion of a public administrator.

On the same day he allowed the petition of the public administrator, and decreed that letters of administration on the estate should be granted to him.

Charles F. Wyman, the Russian vice-consul, appealed from both decrees.

The cases came on to be heard before Knowlton, C. J., who by agreement of the parties reserved them upon the pleadings and an agreed statement of facts for determination by the full court, such entries to be made as law and justice might require.

F. R. Coudert (of New York) (J. H. Appleton with him), for the petitioner.

F. T. Field, assistant attorney-general, for the public administrator. Lathrop, J. On the agreed facts in this case we have no doubt that the judge of the probate court erred in appointing a public administrator as administrator of the estate of a Russian subject dying here intestate and leaving personal property, and in dismissing the petition of the Russian vice-consul on the ground that it did not appear that he had a legal right to be appointed administrator of the estate to the exclusion of the public administrator.

By article 8 of the treaty of 1832, between Russia and the United States, it is provided:

The two contracting parties shall have the liberty of having in their respective ports consuls, vice-consuls, agents, and commissaries, of their own appointment, who shall enjoy the same privileges and powers as those of the most favored nations.

The same treaty in article 10 provides:

The citizens and subjects of each of the high contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation, or otherwise, and their representatives, being citizens or subjects of the other party, shall succeed to their said personal goods, whether by testament or ab intestato, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same at will, paying to the profit of the respective governments such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases.

Under the most favored nation clause, reliance is had upon the provisions of article 9 of the treaty of 1853 between the Argentine Republic and the United States, which read as follows:

If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul, in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.

See also the treaty between Costa Rica and the United States of 1851, article 8.

There is but little authority directly in point, on the question raised by this appeal. In Lanfear v. Ritchie, 9 La. Ann. 96, decided in 1854,

the decision was against the vice-consul of Sweden and Norway, on the ground that the right claimed was "incompatible with the sovereignty of the state." But this was at a time when we might expect the doctrine of state rights to be strongly insisted upon. On the other hand, there are two decisions in the surrogate's court for Westchester county, New York, which fully sustain the position of the vice-consul in the case before us. These cases are well considered and cover the entire ground. Estate of Tartaglio, 12 Misc. (N. Y.) 245. In re Fattosini, 33 Misc. (N. Y.) 18.

None of these cases is binding upon us, and the case must be decided on general principles.

Among the powers conferred upon the president by article 2, §2, of the constitution of the United States is this:

He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.

By article 6 it is declared:

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Treaties are to be liberally construed. Shanks v. Dupont, 3 Pet. 242, 249. Hauenstein v. Lynham, 100 U. S. 483, 487. When, then, anything in the constitution or laws of a state are in conflict with a treaty, the latter must prevail, and this court has not hesitated to follow this rule, which is generally recognized as the law of the land. Tellefsen v. Fee, 168 Mass. 188; Ware v. Hylton, 3 Dallas, 199, 237; United States v. Forty-three Gallons of Whiskey, 93 U. S. 188, 197; Hauenstein v. Lynham, 100 U. S. 483, 489; Head Money Cases, 112 U. S. 580, 598, per Miller, J. Geofroy v. Riggs, 133 U. S. 258, 267; in re Parrott, 1 Fed. Rep. 481.

While it may be true that there is some limit to the powers of the president and senate in making treaties, as has been intimated in some of the cases in the supreme court of the United States, we cannot accede to the contention of the counsel of the public administrator, that the treaties in question in this case are beyond the jurisdiction of the treaty making power; nor can we accede to the further contention as to the construction of the treaty which was adopted by the judge of the probate court.

We might perhaps stop here, but as the question of giving a bond is sure to arise, we are of opinion that the vice-consul, as he has applied for

letters of administration, and thus has submitted himself to the court, should be required to give a bond, and in other respects to conduct himself with respect to the estate as would any other administrator.

The order therefore will be

Decrees of the probate court reversed.

ZARTARIAN V. BILLINGS.

SUPREME COURT OF THE UNITED STATES, 1907

203 U. S...

Mr. Justice Day delivered the opinion of the court.

This is an appeal from an order of the circuit court of the United States for the district of Massachusetts, denying a petition for a writ of habeas corpus filed by Charles Zartarian in behalf of Mariam Zartarian, his daughter, who, it was alleged, was unlawfully imprisoned, detained and restrained of her liberty at Boston by the United States commissioner of immigration, which imprisonment was alleged to have been in violation of the constitutional rights of the said Mariam Zartarian, without due process of law and contrary to the provisions of §2172 of the Revised Statutes of the United States, which section, it is alleged, made said Mariam a citizen of the United States by virtue of the citizenship of her father, the petitioner.

The United States district attorney and the attorney for the petitioners stipulated the following facts:

The petitioner, Charles Zartarian, formerly a subject of the sultan of Turkey, became a naturalized citizen of the United States on September 12, 1896, at the circuit court of Cook county in the state of Illinois. That his daughter Mariam, on whose behalf this petition is brought, is a girl between fifteen and sixteen years of age, and was born just prior to the petitioner leaving Turkey. That in the latter part of the year 1904 the Turkish government, at the request of the United States minister at Constantinople, granted permission to the petitioner's wife, minor son, and his said daughter, Mariam, to emigrate to the United States, it being stipulated in the passport issued to them that they could never return to Turkey. That on March 22, 1905, the Hon. G. V. L. Meyer, then United States ambassador at Rome, Italy, issued a United States passport to your petitioner's said wife and daughter. That said Mariam arrived at Boston from Naples, Italy, on April 18, 1905, and that on April 18, 1905, she was found to have trachoma, and was debarred from landing by a board of special inquiry appointed by the United States commissioner of immigration for the port of Boston.

The petitioner's child, Mariam Zartarian, was debarred from landing at the port of Boston under the provisions of the act of March 3, 1903, chap. 1012, 32 Stat. 1213, U. S. Com. Stat. 1901, Supp. of 1903, p. 170,

entitled "An act to regulate the immigration of aliens into the United States."

Section 2 of that act, among other things, provides that certain classes of aliens shall be excluded from admission to the United States, including "persons afflicted with a loathsome or with a dangerous contagious disease." Upon the finding of the board of inquiry that said Mariam had trachoma, she was debarred from landing.

The contention is that she does not come within the terms of this statute, not being an alien, but entitled to be considered a citizen of the United States, under the provisions of §2172 of the Revised Statutes, which provides:

The children of persons who have been duly naturalized under any law of the United States * ** being under the age of twenty-one years at the time of naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.

As Mariam was born abroad, a native of Turkey, she has not become a citizen of the United States, except upon compliance with the terms of the act of congress, for, wanting native birth, she can not otherwise become a citizen of the United States. Her right to citizenship, if any she has, is the creation of congress, exercising the power over this subject conferred by the constitution. (United States v. Wong Kim Ark, 169 U. S. 649, 702.)

The relevant section, 2172, which it is maintained confers the right of citizenship, is the culmination of a number of acts on the subject passed by congress from the earliest period of the government. Their history will be found in vol. 3, Moore's International Law Digest, p. 467.

The act of 1872 is practically the same as the act of April 14, 1802 (2 Stat. 153), which provided:

* * *

The children of persons duly naturalized under any of the laws of the United States being under the age of 21 years at the time of their parents being so naturalized * * * shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who are now or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered citizens of the United States.

In Campbell v. Gordon (6 Cranch, 176), it was held that this act conferred citizenship upon the daughter of an alien naturalized under the act of January 29, 1795, she being in this country at the time of the passage of the act of April 14, 1802, and then "dwelling in the United States."

The act has also been held to be prospective in its operation and to include children of aliens naturalized after its passage, when " dwelling in the United States. (Boyd v. Thayer, 143 U. S. 135, 177.)