Ah How v. United States

The act of April 29, 1902, c. 641, continuing all laws then in fpree “so far as'the .'same are not inconsistent with treaty obligations,” does not repeal § 3 of the act of May 5, 1892, putting the burden of proving their right to remain in this country, on Chinese arrested under the act. Neither does it repeal § 0 of the act requiring Chinese laborers who .are entitled to remain in the United States to obtain a certificate of residence. A written statement by a United States Commissioner that a Chinese person ef a certain name was brought before him and was adjudged to have the right to remain in the United States by reason of being a citizen is not evidence of a judgment.

APPEALS. FROM THE DISTRICT COURT OF. THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK. The facts- are stated in the opinion. Direct appeals have beén taken to this court upon the ground that treaty and constitutional questions were involved. Chin Bak Kan v. United States, 186 U. S. 193; United States v. Gue Lim, 176 U. S. 459; United States v. Wong Kim Ark, 169 U. S. 649; The treaty and constitutional questions were raised upon-the preliminary hearing before the Commissioner. These are the first cases which have come before this court in which a construction of the act of April 29, 1902, reenacting, extending and continuing all laws relating to the subject- of Chinese exclusion:, “so far as the same are not inconsistent with treaty obligations ” is asked, and are the first cases which have come before this court since the Fong Yue Ting Case, 149 U. S. 698, in which a consideration of the registration provisions of :he act of 1892, as amended by 'the act of 1893, is involved. These are in no sense “entry .casés.” The defendants were not arrested while seeking entrance to -the United States, nor shortly after effecting entrance. The complaints assumed that the defendants were residents during the registration period fixed by the acts of 1892 and 1893, and there was no testimony to controvert-the fact of long years of' residence in. the United States. They are the first cases in' this court- since the Fong Yue Ting case, in which the defendants were at the time of’ arrest actually residing in the United States. Section 3 of the act of 1892, placing the burden of proof on Chinese defendants and section 6 of the same act as amended by the act of 1893,- in so far as it relates to the deportation of Chinese residents of the United States, have all been revoked or superseded by section 1 of the act of April 29, 1902, which (in providing'for the reenactment of the Chinese exclusion laws only in so far as the same were not inconsistent with treaty obligations) assures to Chinese persons, either permanently or temporarily residing in the United States for the ..protectionfpf. their persons and property, all rights given of the United States to citizens of the most favored nation (arriate 4 of the treaty of .1894), the sections above mentioned being inconsistent with said treaty provision. Earlier legislation on the subject of Chinese exclusion was concededly in violation of. treaty obligations with China. Chae Chang Ping v. United States, 130 U. S. 581; Lem Moon Sing v. United States, 158 U. S. 538; Fong Yue Ting v. United States, 149 U. S. 697; United States v. Gue Lim, 176 U. S. 459, 464. Even after judicial expression on this subject, Congress, with “malice aforethought,” reenacted this legislation. Acts of May 5, 1892, and November 3, 1893. And see Sen. Doc. Rep. 776, part 2, pp. 44-97, 1902, referring to statutory violations of the treaty presented by John W. Foster for Chinese Minister. A construction which seeks to effectuate, treaty obligations should be sought rather than the contrary. Chew Heong v. United States, 112. U. S. 536; United States v. Gue Lim, 176 U. S. 459, 465; Whitney v. Robertson, 124 U. S. 190, 194. Section 3 of the act of 1892 is repealed to the extent of its repugnance, to wit, in so far as requiring Chinese residents of the United States to establish by affirmative proof, their right to remain here. See Wood v. United States, 16 Pet. 342, 363; United States v. Tynan, 11 Wall. 88; South Carolina v. Stoll, 17 Wall. 425. There is a distinction between an alien .who remains here and one who has left here and seeks to return. While here he is entitled to the benefit and guarantees of life, liberty and property secured by the Constitution to all persons of whatever race within the jurisdiction of'the United States. His personal, rights when he is in this country and such of his property as is here during his absence are as fully protected by the supreme law of the land as if he were a naturalized citizen of the United States. But when he has voluntarily gone from the country and is beyond its jurisdiction, being an alien, he cannot reenter the United States in violation of the will of the Government, as expressed in enaetmént-s of the law-making power. Lem Moon Sing v. United States, 158 U. S. 547, 548; United States v. Wong Kim Ark, 169 U. S. 700. The construction contended for is reasonable and just. It is not only within the spirit of the act of-1902'and-the treaty of 1894 but within the letter thereof. It is a much narrower construction of the act and treaty, than the construction of section 6 of the act of 1884 adopted in Lau Ou Bew, 144 U. S. 47. It is not as narrow as that in United States v. Gue Lim, 176 U. S. 467. As to due process of law and definitions applicable to this case, see Davidson v. New Orleans, 96 U. S. 97, 107; Boyd v. United States, 116 U. S. 616, 635. This clause cannot be given any wider scope.' See Wong Wing v. United States, 163 U. S. 227. The objection as to the sufficiency of these complaints is not affected by the decision in the case of Chin Bak Kan, 186 U. S. 193. Neither the act of 1892, nor the act of 1893 amending it, required that Chinese persons who were merchants or who “were engaged in business rather than manual labor” should procure certificates of residence during the period when the registration provisions were, in force. Lee Kan v. United States, 62 Fed. Rep. 914; Finn Kwan Case, 100 Fed. Rep. 609, reviewing 94 Fed. Rep. 824. The question is not whether the respondent is a merchant and so exempt from registration, but whether he is a laborer and so liable to deportation for want of registration. He does not appear to be a laborer within either common understanding or the statutory definition of the term. United States v. Mark Ying (a peddler), 76 Fed. Rep. 450. If these defendants were engaged in business in 1894, rather than in manual labor, but since, through misfortune or other cause have become laborers, they arc, nevertheless, not subject to these registration provisions. Treasury Dec. No. 14,542-3,, November 25, 1893. As to those who were minors when the registration act was in force as to laborers, they should not be required to produce certificates. United States v. Gue Lim, 176 U. S. 62; In re Tung, 19 Fed. Rep. 184. Bail should be allowed upon these appeals (a) under the statutes; (b) by virtue of numerous precedents; and (c) in the exercise of the inherent power of the court. Matter of Ah Tai, decided November 16, 1903, in U. S. District Court for Massachusetts, and cases cited. by leave of the court filed a brief in aid of appellants in these cases and in Nos. 308, 309 and 312, on behalf of the Chinese Charitable and Benevolent Association of New York: These appeals are authorized by- statute. United States v. Gee Lee, 50 Fed. Rep. 271; United States v. Lee Seick, 100 Fed. Rep. 398; United States v. Pin Kwan, 100 Fed. Rep. 609; United States v. Ham Toy, 120 Fed. Rep. 1022; Wong Wing v. United States, 163 U. S. 228, 269; United States v. Mrs. Gue Lim, 176 U. S. 459. Chow Loy v. United States, 112 Fed. Rep. 354, has been overruled by Chin Bak Kan v. United States, 186 U. S. 193. Bail should be allowed pending the proceedings. Section 716, Rev. Stat., is sufficient for authority. See also §§765,945, 1014, 1015, and rules 34 and 36 of this court. Hudson v. Parker, 156 U. S. 277, 285; Unused Tag Case, 21 Fed. Rep. 701, 706; In re Chow Goo Pooi, 25 Fed. Rep. 77; Chinese Wife Case, 21 Fed. Rep. 808; United States v. Lee Yen Tai, 108 Fed. Rep. 950; United States v. Moy Yee Tai, 109 Fed. Rep. 1. Section 5, act of - 1882, and § 2, act of 1893, have • no application to these cases. In re Chin Yuen Sing, 65 Fed. Rep. 788; Chin Yuen Sing v. Kilbreth, 163 U. S. 680; 22 Op. Atty. Gen. 340; United States v. Lee Seick, 100 Fed. Rep. 398; In re Ny Look, 56 Fed. Rep. 81; Treas. Dec. No. 13,996; Cong. Rec. 53d Cong. vol. 25, pt. II, p.2444; United States v. Chum Shang Yuen, 57 Fed. Rep. 588. The construction, contended for' by the Government would be imputing to Congress intention to' work gross hardship in the matter of requiring imprisonment pending appeals inconsistent with its subordination of these statutes by the act of 1902, to' Art. 4 of the treaty of 1894, conferring upon Chinese persons for the protection of their persons and property all the rights of the most favored nation, and besides would be of more than doubtful constitutionality as involving imprisonment as distinguished from mere brief detention, incidental to deportation.. Yick Wo v. Hopkins, 118 U. S. 356, 368; In re Qwong Wo, 13 Fed. Rep. 229, 233; In re Ah Chong, 2 Fed. Rep. 733, 737; In re Parrot, 1 Fed. Rep. 481, 498; Wong Wing v. United States, 163 U. S. 228; United States v. Wong Dep Ken, 57 Fed. Rep. 206; In re Lintner, 57 Fed. Rep. 587. The statutes throwing the burden of proof on the Chinamen arrested are inconsistent with Art. 4 of the treaty of 1894, and with the amendments to the Federal Constitution. A later inconsistent statute supersedes a prior treaty. Exclusion Casesj 130 U. S. 598; Li Sing v. United States., 180 U. S. 486, 495; cases cited under last point and Mrs. Gue Lim v. United States, 176 U. S. 459, 465. The registration provisions have been erroneously construed below as having required all. persons not now proved to be merchants as defined in the act, to register as “laborers,’’ as also persons who were minors, residing in the United States in 1892 having no occupation of their own, contrary to a reasonable construction and understanding of these laws, at least as given during, the six months following November 3, 1893, during which alone registration was permitted. As to provisions of registration of merchants and witnesses in regard thereto, see Li Sing v. United States, 180 U. S. 486; United States v. Lee Seick, 100 Fed. Rep. 398; Fong Yue Ting v. United States, 149 U. S. 698, 726; United States v. Sing Lee71 Fed. Rep. 686; United States v. Tyle, 76 Fed. Rep. 318; In re Chin Ark Wing, 115 Fed. Rep, 412; Treas. Decs. 14,542½, 17,145, 18,666, 18,686. As to who are merchants, see United States v. Mark Ying, 76 Fed. Rep. 450; United States v. Chin Fee, 94 Fed. Rep. 828; In re Chu Roy, 81 Fed. Rep. 826; Wong Fong v. United States, 77 Fed. Rep. 168; In re Ho King, 14 Fed. Rep. 724; United States v. Gay, 95 Fed. Rep. 226; 20 Op. 602, 324; 23 Op. 485; 24 Op. 132. The minors, should , not have been deported. It was error to exclude the certificate of United States Commissioner, the genuineness whereof was admitted and which was relied upon tó show an adjudication made after due hearing in 1897, by a United States Commissioner to the effect that the defendant was a citizén of the United States by birth. The Commissioner had jurisdiction to determine citizenship. Chin Bak Kan v. United States, 185 U. S. 193. The certificate was sufficient to establish res judicata. Treaty Dec: 22,572; United States v. Chung Shee, 76 Fed. Rep. 951, 956; United States v. Luey Guey Auck, 115 Fed. Rep. 252. Compare United States v. Hills, 124 Fed. Rep. 831; Kirby v. United States, 174 U. S. 47; Sparf v. United States, 156 U. S. 51, 56. The principle of res judicata applies to determinations based upon jurisdiction, whether made in courts of record or not of record. Gates v. Preston, 41 N. Y. 13; Reich v. Cochrane, 151 N. Y. 122; Mohr v. Maniere, 17 Fed. Cas. No. 9695, affirmed 101. S. 416. Congress has to provide methods by which the Commissioner’s determination, upon such issues can be proved. United States v. Jones, 134 U. S. 483; Hoyne v. United States, 38 Fed. Rep. 542; Philips v. United States, 33 Fed. Rep. 164; §847, Rev.1 Stat.; United States v. McDermott, 140 U. S. 151; United States v. Julian, 162 U. S. 324; Southworth v. United States, 151 U. S. 179. These certificates are frequently the only evidence obtainable. • Treasury Dec. 8572, 11,606, at p. 1048; 14,375, 14,654, 17,237. As to the excuse of illness, the Commissioner has attempted to give this statute an unduly harsh and severe construction, to the effect'that there must not have been a day during the statutory period during which illness, did not prevent registration. This is an unwarranted and oppressive construction of the statute, not sustained by -the authorities. United States v. Tye, 70 Fed. Rep. 318; In re Chin Ark Wing, 115 Fed. Rep. 412; Wong Fong v. United States, 77 Fed. Rep. 168. Chinese persons are entitled to a liberal construction of this statute with respect to time; because of the delay of the Government in the matter bf prescribing regulations and forms of certificates required by the act of 1893. The complaints stated no cause of action. Accordingly, the general line of authority requiring complaints setting forth the facts establishing causes of action, is applicable here. Rice v. Ames, 180 U. S. 371; Ex parte Hart, 63 Fed. Rep. 249, 259; Ex parte Laue, 6 Fed. Rep. 34, 38; United States v. Tureaud, 20 Fed. Rep. 621; United States v. Sapinkow, 90 Fed. Rep. 654, 660; West v. Cabell, 153 U. S. 78. The complaints should have been under oath. Register v. Lee Lum, 94 Fed. Rep. 343, 346; Southworth v. United States161 U. S. 639, 642. These proceedings were all barred by the statute of limitations of five years, since more than 'five years have elapsed since registration was authorized and the"' defendants were shown to have been continuously resident within the United States for upwards of/twenty, years except Lew Guey, the holder of the McGettrick certificate. If these proceedings are not criminal, they are at least quasi criminal within the' meaning of § 1047, Rev. Stat.; Boyd v. United States, 116 U. S. 616; Lees v. United States, 150 U. S. 476; Johnson v. Donaldson, 3 Fed. Rep. 22; United States v. Irvine, 98 U. S. 450; Re Neilson, 131 U. S. 126, 187; Daly v. Brady, 69 Fed. Rep. 285; Bolles v. Outing Co., 175 U. S. 262; United States v. Riley, 88 Fed. Rep. 480. While Chinese Exclusion cases are not to be reviewed as criminal proceedings, they partake so far of the nature of criminal proceedings as to be governed.by these provisions, applicable to proceedings for penalties and forfeitures. Ex parte Sing, 82 Fed. Rep. 22; United States v. Wong Quong Wong, 94 Fed. Rep. 832; United States v. Jacobus, Second Circuit, unreported, October, 1903. It is impossible to avoid the conclusion that the character of the testimony was for the most part perfunctory and formal; that it utterly, failed to support with any conclusiveness either thé claim of merchant status .or that of citizenship, and amply justified the commissioner’s orders of deportation, and his finding as to the merchant claim that the proofs furnished did not clearly establish facts which would bring these persons within the statute as merchants. The term ‘ ‘ merchant,” as it is used in Chinese exclusionlegislation, has been clearly definéd by the law and by the decisions of the courts. Section 2, act of Nov. 3, 1893; In re Ah Yow, 59 Fed. Rep. 561; Lai Moy v. United States, 77 Fed. Rep. 955; Mar Bing Guey v. United States, 97 Fed. Rep. 576, and has expressly been held not to include bookkeepers and paid assistants in a store. United States v. Pin Kwan, 100 Fed. Rep. 609; Quock Ting v. United States, 140 U. S. 417; In re Louie You, 97 Fed. Rep. 580; United States v. Lee Huen, 118 Fed. Rep. 458. The points raised in these cases have been heretofore considered by the court and positively and conclusively determined. The court has held that the treaty of 1894 did not repeal existing law; that defects in complaint or pleading do not affect the authority of the commissioner or judge of the validity of the statute; that the adjudication of the judge or commissioner is final; that the court cannot properly reexamine facts already determined by two judgments below; that the policy of Chinese legislátion is- opposed to numerous appeals. Fong Yue Ting v. United States, 149 U. S. 729; United States v. Lee Yen Tai, 185 U. S. 213; Chin Bak Kan v. United States, 186 U. S. 193. The contentions that the act of April 29, 1902, repeals by implication the laws .of 1892 and 1893, and that the offense is barred by the ‘operation of §§ 1046, 1047, Rev. Stat., are .without merit. The language' of the act of 1902 makes- it evident that Congress considered the entire scheme of exclusion law,. embracing the treaty, as forming one complete, harmonious and consistent whole.. The act of 1902 is merely additional legislation on' the subject, and there is^.nothing repugnant between that and former acts. Neither-'! 1046, which provides a limitation of five years for prosecutions under the revenue and slave trade laws, nor § 1047, imposing the same- limitation on suits, or prosecutions for penalties or forfeitures, touches Chinese exclusion in the remotest way. . But if the case were otherwise, it is sufficient to say that the offense is a.continuing one; it is the gist of the subject that the China-man never had and has not now any right to be here. Congress intended the determination of the rights of a Chinaman to be prompt and final in the lower tribunals. The statutory provisions as to bail in Chinese cases limit the discretion of' courts and judges and forbid the taking of bail. Sec. 5, act of May 5, 1892; sec. 2,- act of Nov. 3, 1893. The practice bn the subject is conflicting, but it appears to tend to the refusal of bail. In re Ah Kee, 21 Fed. Rep. 701; In re Chow Goo Pooi, 25 Fed. Rep. 76; In re Ah Moy, 25 Fed. Rep. 808; In re Chin Yuen Sing, 65 Fed. Rep. 788; Chan Gun v. United States, 9 D. C. App. 290, So far as affirmative law goes, and disregarding, for the sake of argument, the clear prohibition in the statutes cited, the fact is that the Chinese' case falls between the two- categories of civil and criminal as used in .the. Revised Statutes respecting bail, §§ 945, 1014, 1015, and is unprovided for on that point. No general or fundamental right of appeal exists here. Where Congress has given one'appeal specifically, no further appeal is to be inferred or implied. Railroad Company v. Grant, 98 U. S. 398; McKane v. Durston, 153 U. S. 684; Kohl v. Lehlback, 160 U. S. 293. The law defines a laborer and a merchant, and those claiming to be merchants must bring themselves clearly within the definition and conditions. A Chinese person, technically a minor, whose claim of citizenship is not established, who has been here for an uncertain time, and is found to be a laborer, cannot escape the result of that status merely because <4 his minority. In such cases the exceptions to the certificate requirements in the case of minor children of a domiciled merchant, are not applicable. United States v. Mrs. Gue Lim, 176 U. S. 459. The claim, of citizenship by birth is not to be conceded upon a mere assertion of the fact Unaccompanied by corroborative incidents, circumstances or details. Quock Ting v. United States, 140 U. S. 417; Chin Bak Kan v. United States, supra; In re Louie You, 97 Fed. Rep. 580; United States v. Lee Huen, 118 Fed. Rep. 458; and it cannot be doubted that a United States Commissioner properly and finally passes upon the claim of birth in this country as well as upon all other facts. Chin Bak Kan v. United States, supra.