United States v. Gee Lee

• Decision Date: 18 April 1892
• Citation: 50 F. 271
• Parties: UNITED STATES v. GEE LEE.
• Court: U.S. Court of Appeals — Ninth Circuit

50 F. 271

UNITED STATES v. GEE LEE.

United States Court of Appeals, Ninth Circuit.

April 18, 1892

Syllabus by the Court.

This act having been passed subject to the ratification of a treaty then pending between the United States and the emperor of China, which was never ratified, is not in force, except section 13 thereof.

The phrase 'district judge of the district,' in section 13 of the act of September 13, 1888, construed, and held as the equivalent of the 'district court of the district,' and a writ of error will lie from this court to the judgment thereof.

A Chinese merchant domiciled in the United States, on his return thereto from a temporary absence therefrom, is not required to produce the certificate provided for in the act of July 5, 1884, in the case of persons first coming into the United States.

Patrick H. Winston, for plaintiff in error.

Charles L. Weller, (Wm. H. White, of counsel,) for defendant in error.

Before GILBERT, Circuit Judge, and DEADY and HAWLEY, District Judges.

DEADY District Judge.

On October 7, 1891, Gee Lee, alias Lee Hoy, was arrested and brought before a commissioner of the circuit court of the United States, under section 13 of the act of September 13, 1888, (25 St. . 479,) and charged with unlawfully entering the United States.

On the hearing the commissioner found the accused to be a native of China, who had entered the United States from the port of Victoria without a certificate showing that he was a person entitled to enter the United States, and ordered him deported.

Gee Lee appealed from the order of the commissioner to the district judge.

On March 3, 1892, the judge filed the following findings of fact:

'The defendant, Gee Lee, alias Lee Hoy, is a native of China hat he came to the United States from China in the year 1880, and has made his home in this country ever since. For the first eight years after his arrival he belonged to the laboring classes, and was employed as a cook.

'At the end of eight years he ceased to pursue the avocation of a cook, purchased a stock of merchandise, and for upwards of three years last past he has been a merchant at Port Angeles, in this state. He has frequently visited relatives at Victoria, B.C., but has never been out of the United States since his first arrival here in 1880, except for the purpose of making said visits, when he always traveled by the regular passenger steamboats, and always landed, on returning, with the knowledge and consent of the collector of customs, at Port Townsend. There is no question as to his identity. He is as well known at Port Angeles, the community in which he lives, as any other merchant there. In the month of September, 1891, he went to Victoria, B.C to visit a sick relative. On the 1st day of October, 1891, he returned from Victoria as a passenger on the regular passenger steamer Geo. E. Starr, and was permitted to land by the collector of customs, partly upon certificates for his identity and occupation as a merchant living at Port Angeles, given him by well-known citizens of that place, but chiefly upon his own personal recognition of the man, and knowledge as to his residence and business at Port Angeles, as aforesaid. After the landing he was allowed to go to Port Angeles, and was not molested for a period of two weeks, when he was arrested upon the charge of being a Chinese person not lawfully entitled to be or remain in the United States. That at the time he entered the United States from the foreign country of British Columbia, to wit, October 1, 1891, he had no certificate, as provided by the sixth section of the restriction act, as amended by the act of July 5, 1884.

'The court concluded from these premises-- '(1) That the defendant is not in fact one of the class of persons not lawfully entitled to remain in the United States; (by which I understand that he was lawfully entitled to so remain.)

"(2) That, having been permitted by a collector of customs to land, after a temporary absence from the United States without fraud on his part, the defendant cannot be lawfully sent out of the United States because of a mere error in a collector in not exacting legal evidence of the facts as to his identity and the nature of his business. In my opinion, the law does not authorize, but forbids, the execution of the warrant issued by the commissioner in this...