Chow Loy v. United States

• Decision Date: 23 November 1901
• Docket Number: 402.
• Citation: 112 F. 354
• Parties: CHOW LOY v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

112 F. 354

CHOW LOY v. UNITED STATES.

No. 402.

United States Court of Appeals, First Circuit.

November 23, 1901

John S Richardson and R. C. Moore, for appellant.

Isaac W. Dyer, U.S. Atty.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

This is an appeal from an order of the circuit court of the United States for the district of Maine dismissing the petition of Chow Loy for a writ of habeas corpus. 110 F. 952.

The appellant, Chow Loy, was arrested May 13, 1901, under the provisions of 'An act to prohibit the coming of Chinese laborers to the United States,' approved September 13 1888. 25 Stat. 476. After a hearing, the United States commissioner, on May 23, 1901, found and adjudged that the said Chow Loy is a Chinese person, and is not entitled to be or remain in the United States; that the said Chow Loy is a citizen or subject of no other country than China; and it was ordered that the said Chow Loy be removed from the United States to the empire of China. The commissioner's record contains, also, the following entires:

'May 24. Copy of judgment and warrant to remove issued.

'May 31. Levi Turner, Esq., appears and gives notice of appeal.

'July 3. Levi Turner, Esq., withdraws appearance.

'July 11. John S. Richardson, Esq., of Boston, offers to appear and prosecute appeal.'

By section 13 of the act it is provided:

'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.'

The only act done by the appellant within the statutory period of 10 days was that proven by the following extract from the commissioner's record:

'May 31. Levi Turner, Esq., appears and gives notice of appeal.'

We have first to inquire whether the appellant did, within 10 days, appeal to the district judge, within the meaning of the act.

As the hearing upon deportation proceedings is of an anomalous and summary character, we are of the opinion that there should be no stricter requirement in regard to procedure than is necessary to make it appear that the party asserted and claimed his right. A positive right is given him by the statute. If he has seasonably asserted this right, it should be not defeated by a failure to take proceedings analogous to those prescribed for the taking and perfection of appeals or writs of error. In Fong Yue Ting v. U.S., 149 U.S. 698, 728, 729, 13 Sup.Ct. 1028, 37 L.Ed. 918, it was said:

'No formal complaint or pleadings are required, and the want of them does not affect the authority of the judge, or the validity of the statute.'

If we look to the practice upon ordinary appeals to furnish us guidance by analogy, it will appear that an appeal is 'taken' in the lower court.

In Brown v. McConnell, 124 U.S. 489, 490, 8 Sup.Ct. 560, 31 L.Ed. 496, it was said:

'An appeal to this court in a proper case is a matter of right, and its allowance is in reality nothing more than the doing of those things which are necessary to give the appellant the means of invoking our jurisdiction. A writ of error is the process of this court, and it is issued, therefore, only upon our authority; but an appeal can be taken without any action by this court. All that need be done to get an appeal is for the appellant to cite his adversary in the proper way to appear before this court, and for him to docket the case here at the proper time. * * * If an appeal is taken by the action of the court in session before the end of the term at which the decree is rendered, no formal citation is necessary, because, both parties being constructively in court during the entire term, they are charged by law with notice to all that is done in the case affecting their interests. But, if the necessary security is not taken until after the term, a citation is required to bring the appellee before us, although, if the case is docketed here in time, it will not be dismissed at the return term until an opportunity has been afforded the appellant to give the requisite notice. The appeal taken in open court, if docketed here in time, gives this court jurisdiction of the subject-matter, and invests it with power to make all orders, consistent with proper practice, which are needed in furtherance of justice. This subject was fully considered in Hewitt v. Filbert, 116 U.S. 142, 6 Sup.Ct. 319, 29 L.Ed. 581.'

We are of the opinion that the proceedings before the commissioner after judgment are sufficient to show that a claim of appeal was made within 10 days. The case which we have cited seems to be an express authority for the position that an appeal can be taken without any action by the appellate court. We further think that the 10 days provided for taking the appeal was in this case analogous to a term of court in an ordinary case, and that an appeal orally taken and recorded within that time by the commissioner constituted a sufficient notice to the appellee of the pendency of an appeal. We are further of the opinion that no citation to the appellee was necessary, and that it was fairly chargeable with notice of all that was done in the case during this period of 10 days. We see no reason for incumbering this proceeding with any more technicalities than are necessary in the case of appeals orally taken, in a court in session, before the end of the term. The statute makes no provision as to when an appeal shall be heard by the judge of the district court, nor as to when it shall be presented to him. As the appellant has the full period of 10 days within which to appeal, if such an appeal can be taken solely by action before the commissioner it would seem to follow that he can be deprived of no part of this time for taking the appeal by a requirement which would make him take it in season to present it to the judge within the period of 10 days.

In Credit Co. v. Arkansas Cent. R. Co., 128 U.S. 258, 261, 9 Sup.Ct. 108, 32 L.Ed. 449, it was said:

'An appeal cannot be said to be 'taken,' any more than a writ of error can be said to be 'brought,' until it is in some way presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the case, and making it its duty to send it to the appellate court. This is done by filing the papers, viz. the petition and allowance of appeal (where there is such a petition and allowance), the appeal bond, and the citation.' It was also said:

'Of course, if the appeal is allowed in open court, and entered in the minutes, no further service is required.'

In Edmonson v. Bloomshire, 7 Wall. 306, 311, 19 L.Ed. 92, it was said:

'The prayer for the appeal, and the order allowing it, constituted a valid appeal.'

In Evans v. Bank, 134 U.S. 330, 10 Sup.Ct. 493, 33 L.Ed. 917, it was said that, under the rule, it is the duty of an appellant to docket his case and to file the record in the appellate court within the first six days of the term; and, if this is not done, the appellee may have the case docketed and dismissed; and, if the case is not so docketed and dismissed by the appellee, the appellant is in time if the record be filed during the return term.

In Brooks v. Norris, 11 How. 207, 13 L.Ed. 666, it was said that 'the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment.'

In Seymour v. Freer, 5 Wall. 822, 18 L.Ed. 564, it was said:

'What is essential to an appeal is allowance, citation to the appellees, or equivalent notice, or waiver, and the bringing up of the record at the next term of this court.'

We think that an allowance of the appeal by the commissioner was not essential. The commissioner was not acting as a court of record, had no clerk, and no allowance was necessary as a direction to a clerk to send up the record. Had there been an entry of an allowance by the commissioner, that would have afforded merely additional evidence that a right had been claimed. Moreover, no bond or security was required, as the appellant was in actual custody. While the question is not altogether free from doubt, we think the sounder view, in proceedings of this character, is that, if the Chinese person asserts his claim of right within the 10 days, he has appealed to the district judge within the fair meaning of the statute.

Assuming, then, that an appeal was taken, the next question for consideration is whether the district judge erred in dismissing the appeal for abandonment. The district judge said, in his opinion dismissing the appeal, that it was not brought to his notice till late in July, a few days before the hearing. The petition to the circuit court for the writ of habeas corpus stated that the pendency of the aforesaid appeal had been called to the attention of the district judge several days previous to the 30th day of July, the exact date not being known to the petitioner. It is apparent that no steps whatever were taken to procure a hearing by the district judge during the month of June, and that nothing was done until the latter part of July, except that on July 3d Levi Turner, Esq., appeared before the commissioner and withdrew his appearance, and that on July 11th John S. Richardson, Esq., of Boston, appeared before the commissioner and 'offers to appear and prosecute the appeal. ' In ordinary cases of appeal, where the appellant fails seasonably to docket his case, the appellee may do so for the purposes of dismissal.

We think it follows, of necessity, that the district judge to whom the appeal is to be made has power not only to hear the case, but also to decide whether or not there has been such an abandonment of the appeal as warrants its dismissal. The statutes regulating appeals have no...