Ex parte Loung June

• Court: U.S. District Court — Northern District of New York
• Citation: Ex parte Loung June, 160 F. 251 (N.D. N.Y. 1908)
• Decision Date: 14 March 1908
• Parties: Ex parte LOUNG JUNE alias LEONG JUN.

160 F. 251

Ex parte LOUNG JUNE alias LEONG JUN.

United States District Court, N.D. New York.

March 14, 1908

R. M Moore, for petitioner.

Geo. B Curtiss, H. E. Owen, Asst. U.S. Atty., and A. W. Cooley Asst. Atty. Gen., for the United States.

RAY District Judge.

From the petition and return the following facts appear:

(1) Loung June, the petitioner, is a Chinese person, and on the 11th day of August, 1903, he applied for admission into the United States at the detention station at Malone, N.Y where he was detained, and thereafter he was discharged from such station on a writ of habeas corpus, but not on the merits, and it was without prejudice to further proceedings. (2) Thereafter he was arrested and detained in the detention house on the charge that he had unlawfully entered the United States and was then unlawfully within the United States. Upon such charge he was taken before Benjamin L. Wells, at Malone, N.Y., in the district where arrested, and on the 16th day of December, 1903, the testimony of one Fay Fong was put in evidence and submitted to the said commissioner as evidence and proof of the right of said Loung June to enter and remain in the United States. Thereafter, and on the 17th day of December, 1903, the said Benjamin L. Wells, as United States commissioner, and before whom the said proceeding was pending, discharged the said Loung June from custody, and then and there made and issued to him a judgment of discharge in the words and figures following, viz.:

United States Commissioner's Court, Northern District of New York.

United States of America v. Loung June, alias Leong Jun. (116.)

Before me, Benj. L. Wells, a commissioner of the District Court of the United States within and for said district, complaint was presented by F. W. Berkshire, of N.Y., N.Y., a Chinese inspector for said district, charging in substance that on or about the 11th day of August, 1903, at Burke, N.Y., in said district, one Loung June, in violation of the Chinese exclusion acts, statutes of the United States, did unlawfully come into and was found to be not lawfully in the United States, he being a Chinese person and laborer and not a diplomat or other officer of the Chinese or any other government, and without producing the certificate required of Chinese persons seeking to enter the United States; and on the 4th day of December, 1903, said defendant was brought before me, the said commissioner, and the proceedings adjourned from time to time, and upon a full hearing upon said charge Hon. H. E. Owen, the assistant district attorney of the United States of America, being present, Hon. R. M. Moore, appearing for defendant.

And I hereby order and direct that said defendant be and he is hereby discharged, on consent of Assistant U.S. Attorney H. E. Owen.

I also certify that the photograph hereto annexed is a true likeness of said defendant.

Given under my hand and seal at Malone, in the Northern district of New York, this 17th day of December, 1903.

(Seal.)

(Signed) Benj. L. Wells,

United States Commissioner, Northern District of New York.

(Photograph.)

The words erased by a line, finding and adjudging that he was not guilty and that he had a right to be and remain in the United States, were erased before the judgment was signed.

(3) Thereafter, and on the 18th day of November, 1907, the said Loung June presented himself in person at the detention house at Malone, N.Y., and made application to enter the United States. He was given an opportunity by H. R. sisson, the immigration officer in charge, to make such voluntary statements as he might desire to make relative to his right to be admitted and to produce witnesses. A full and fair hearing was offered and given. Said Loung June then and there produced and presented as evidence of such right the said judgment of discharge duly signed by said commissioner. He also produced witnesses, who were duly sworn and gave testimony as to his right to enter the United States. It was claimed that such judgment was res adjudicata of his right to enter, to be and remain in, the United States, and that claim has been made at all times since, and is the main basis of the application for this writ.

(4) The said inspector denied the said Loung June admission, and he thereupon duly appealed from such holding to the Department of Commerce and Labor, where that decision was affirmed and the appeal dismissed.

(5) Said inspector holds and has held the petitioner in said detention house at Malone, N.Y., for convenience, it being regularly designated by the proper authorities of the United States, and for the purpose of returning him to China, whence he came, at the first opportunity, and for no other purpose. This is the unlawful imprisonment and detention complained of.

The evidence produced, aside from such judgment, the force and effect of which is to be considered later, is not sufficient to require a judgment that the petitioner has the right to enter the United States. It is not contended that it is sufficient. In behalf of the petitioner, however, it is contended that such judgment of the United States commissioner, made and signed after a full hearing, after the taking and submission of evidence in behalf of said Loung June, although on consent of the assistant United States, attorney, is res adjudicata of his right to be in the United States, and consequently of his right to go and come and enter.

On the argument much was said to the effect that such judgment was made on consent of the United States because of sickness, and that is stated in communications sent the Department of Commerce and Labor. Whose sickness and what sickness is not stated. But there is nothing in the evidence before me, or in the return, or in the judgment itself, to show why he was discharged, or why the assistant United States attorney consented to such discharge. There is no mention of sickness in any paper, or any part of the record, except the letter referred to. It does not affirmatively appear that he was discharged for the reason the evidence established his right to be in the United States, unless the mere fact that he was discharged by the commissioner establishes that as a fact. Is that the legal presumption from the face of the judgment? This is not the case of a certificate issued by the commissioner, stating what he has done at some former time or on some prior occasion. It is a judgment the commissioner was authorized to pronounce. It was his duty to make some record of his action. The judgment itself is in evidence. Hence the decision of this court in United States v. Lew Poy Dew (D.C.) 119 F. 786, is not in point.

It is settled law that a judgment, to be res adjudicata, must be on the merits. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195; Hughes v. United States, 4 Wall. (U.S.) 232-237, 18 L.Ed. 303; Gould v. E., etc., R.R. Co., 91 U.S. 532, 533, 534, 23 L.Ed. 416; U.S. v. C.B.W.R. Co. (C.C.) 110 F. 864; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; Clark v. Bernhard M. Co. (C.C.) 82 F. 339; Shaw v. Broadbent, 129 N.Y. 114-123, 29 N.E. 238; Ward v. Boyce, 152 N.Y. 191, 201, 46 N.e. 180, 36 L.R.A. 549; Foye v. Patch, 132 Mass. 105-110. The rule is well stated in Hughes v. United States, 4 Wall., at page 237, 18 L.Ed. 303, where it is said:

'In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits.'

But what is the presumption where the judgment recites and determines, as this one does, that complaint was presented 'charging in substance that on or about the 11th day of August, 1903, at Burke, N.Y., in said district, one Loung June, in violation of the Chinese exclusion acts, statutes of the United States, did unlawfully come into and was found to be not lawfully in the United States, he being a Chinese person and laborer and not,' etc., 'and on the 4th day of December, 1903, said defendant was brought before me, the said commissioner, and the proceedings adjourned from time to time, and upon a full hearing upon said charge, Hon. H. E. Owen, the assistant district attorney of the United States of America being present, Hon. R. M. Moore appearing for defendant, and I hereby order and direct that said defendant be and he is hereby discharged, on consent of Assistant U.S. Attorney H. E. Owen'? In short he was discharged on consent after a full hearing on the charge made against him. On the face of the judgment it does not necessarily purport to be made on the merits; but it does purport to be made after a full hearing and on the consent of the one making and prosecuting the charge. The judgment contains no provision that defendant is discharged without prejudice. Does it show on its face that the merits were not passed upon? It would have been easy for the government to show, if such was the fact, that the judgment was not pronounced on the merits.

Stress is laid on the fact that this judgment does not contain an affirmative finding or adjudication that the defendant was not guilty of the charge laid and that he had a lawful right to be and remain in the United States. In these proceedings under the provisions of the act, mere accusation is sufficient to warrant deportation when it appears that the defendant is a Chinese person and that he does not belong to the exempt class. When these facts appear the burden is thrown on the defendant to show his right to enter, or to remain if already here. Hence, it is claimed, the necessity for an affirmative finding that he is not guilty and is entitled to enter, or remain, as the case may be. But if evidence of a right to enter is given, and he is already in...