United States

• Decision Date: 02 May 1904
• Docket Number: O,No. 16,16
• Citation: 194 U.S. 194,48 L.Ed. 931,24 S.Ct. 629
• Parties: Re UNITED STATES, Petitioner . riginal
• Court: U.S. Supreme Court

194 U.S. 194

24 S.Ct. 629

48 L.Ed. 931

Re UNITED STATES, Petitioner.

No. 16, Original.

Submitted April 18, 1904.

Decided May 2, 1904.

Solicitor General Hoyt and Assistant Attorney General McReynolds for petitioner.

Mr. Chief Justice Fuller delivered the opinion of the court:

This is a petition for a writ of mandamus, commanding the judge of the district court of the United States for the northern district of Ohio to direct the entry on the records of that court of final judgment in the cases of United States v. Jock Coe, Bong Meng, and Woo Joe, and that the clerk enter the same; and that the cases be treated as properly appealed from the United States commissioner before whom they had been heard in the first instance, and as having been before the district court for determination. The complaint against Coe was made before a United States commissioner for the northern district of Ohio, charging that Coe, a Chinese person, was within the United States at Cleveland, Ohio, contrary to law, and a warrant was duly issued and executed, whereupon the commissioner found Coe guilty, and ordered him to be deported. Coe appealed 'to the district court of the United States in and for the northern district of Ohio, and the judge of said court,' and the commissioner transmitted a copy of the proceedings before him and the accompanying papers 'into the district court of the United States,' as his certificate stated. The transcript was filed by the clerk of the district court, and was marked as filed among the papers pertaining to the case. Subsequently a hearing was had and § 13 of the act of Congress of September 13, 1888,¹ was held to be unconstitutional, and Coe was discharged, to which exception was taken. Motion for new trial was made and overruled, and a bill of exceptions was duly settled and signed by the district judge. The United States applied to the clerk to file the bill of exceptions and various papers as part of the record of the district court, and to prepare a certified transcript thereof; but the clerk declined to do this under instruction of the judge, and furthermore stated that so many of the papers as were marked filed 'had been so marked by mistake.' The United States thereupon requested the judge, in writing, to order the clerk to file in the district court all the papers in the proceedings, and to make the necessary entries in regard thereto, and to prepare a certified transcript thereof, in order that a complete record of the same might be preserved, to be used on an appeal taken to this court. The request was refused on the ground that the proceedings on appeal from the commissioner had been had before the judge as judge, and not before the district court.

Leave having been granted to file the petition, and a rule having been entered thereon, return thereto has been duly made. The return of the judge states that in the proceedings against Coe, which were described in the bill of exceptions, a copy of which was attached to the petition for mandamus as an exhibit, he had denied as judge the order applied for, although he had allowed an appeal of the cause to the Supreme Court of the United States; that he had adopted this course because he was of opinion that § 13 gave jurisdiction on appeal to respondent as judge, but did not give jurisdiction to the district court to hear such appeal; and that said appeal was heard by respondent as judge, and not in the district court; that the clerk should not be ordered to make the proceedings matter of record in the district court, because there was no provision of law requiring the clerk to record proceedings other than those occurring in the court.

It seems that the judge allowed a writ of error, but only to his action as judge, and even if it could he held to run to the district court, it would be equally unavailing, in the absence of final judgment in that court and of the filing of the bill of exceptions. As we understand this record, if the appeal from the commissioner under § 13 was an appeal to the district court, then it follows that the commissioner's transcript and other papers pertaining to the case should be filed and the judgment be entered in that court, and an appeal will bring the cause before us. In other words, the district court will not have lost jurisdiction because of the view taken by the district judge, and the final order may be entered as the final judgment of the court.

Section 13 of the act of September 13, 1888 (25 Stat. at L. 476, chap. 1015, U. S. Comp. Stat. 1901, p. 1312), provides: 'That any Chinese person, or person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court, or before any United States court, and when convicted upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came. But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such conviction, appeal to the judge of the district court for the district.'

Many cases may be found in which the words 'court' and 'judge' were held to have been used interchangeably, and in Foote v. Silsby, 1 Blatchf. 542, Fed. Cas. No. 4,917, Mr. Justice Nelson was of opinion that the circuit judge sitting at chambers was the circuit court in the usual and proper sense of the term and within the meaning of the 17th section of the patent act of July 4, 1836 (5 Stat. at L. 117, chap. 357).

In Porter v. United States, 2 Paine, 313, Fed. Cas. No. 11,290, Judge Betts said: 'It is not an unusual use of language, in the statutes, to put the judge for the court, and to make provisions for him to execute which can only be executed in court.' It was held that a statute authorizing a party 'to prefer a bill of complaint to any district judge of the United States,' referred to the district court, and not to the judge as an individual.

The construction put upon § 13 in practice has been quite general that the appeal to the district judge is in effect an appeal to the district court.

In 1892 the circuit court of appeals for the ninth circuit so held, in United States v. Gee Lee, 1 C. C. A. 516, 7 U. S. App. 183, 50 Fed. 271, and that the circuit court of appeals had jurisdiction over the judgment of the district court under § 6 of the judiciary act of March 3, 1891 [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, pp. 549, 550]. The circuit court of appeals was of opinion that the words 'the judge of the district court for the district' could and should be held equivalent to the words 'the district court for the district,' and that, while they were not, strictly speaking, convertible terms, they were so in a popular sense; 'and it is safe to assume that Congress, in the use of the former phrase in this section, intended to give the party an appeal to the district court of the district.'

In United States v. Pin Kwan, 40 C. C. A. 618, 100 Fed. 609, decided February 28, 1900, the circuit court of appeals for the second circuit sustained a writ of error to review the decision of the district court (94 Fed. 824) in which an order of deportation by a United States commissioner had been reversed by the district court. Of course, the circuit court of appeals took jurisdiction on the theory that the statute provided for appeals from the commissioner to the district court. And see United States v. Eam Toy, 56 C. C. A. 685, 120...