In re Chin Ark Wing

• Decision Date: 12 May 1902
• Docket Number: 1,323.
• Citation: 115 F. 412
• Parties: In re CHIN ARK WING.
• Court: U.S. District Court — District of Massachusetts

115 F. 412

In re CHIN ARK WING.

No. 1,323.

United States District Court, D. Massachusetts.

May 12, 1902

From his decision such laborer appealed to the judge, making no objections to the findings of facts. Held that he thereby impliedly assented to a hearing before the judge on an agreed statement of facts, and the court had jurisdiction, whether it be considered an original proceeding, or as an appeal from the commissioner.

Appeal from United States Commissioner.

Fuller C. Smith, for Chin Ark Wing.

William H. Garland, Asst. U.S. Atty.

LOWELL District Judge.

The facts in this case are found by the commissioner as follows:

'The defendant arrived in the United States in the year 1882 and was employed as a laundryman during a period of nine years thereafter. Eleven years ago he became a merchant and was engaged in trade during a period of seven years, as one of the firm doing business in Oxford street, Boston, until the building in which the firm did business was torn down, since when, and during the last four years, the defendant has been employed as a laundryman, and was so employed when arrested on the complaint made in this case.'

The defendant first objects that the proceedings before the United States commissioner were void, because the act of November 3, 1893 (28 Stat. 7), and section 6 of the act of May 5, 1892 (27 Stat. 25), provide that the Chinese laborer proceeded against shall be taken before 'a United States judge.' It is certainly a considerable stretching of language to hold that a United States commissioner is 'a United States judge,' especially as the two are differentiated in other parts of the act. This practice is in favor of the defendant, who thus gets the benefit of two hearings, instead of one. If the commissioner holds him, he has an appeal to the judge on both facts and law. If the commissioner discharges him, he is quit altogether. This practice has always been followed in this district, and apparently in many others. To do away with it would impose an intolerable burden on the judge. It has been tacitly approved by the supreme court in Li Sing v. U.S., 180 U.S. 486, 21 Sup.Ct. 449, 45 L.Ed. 634. See, also, 31 Stat. 1093. Moreover, it is doubtful if the objection, which was not raised before the commissioner, can now be availed of. The defendant has been at last 'taken before a United States judge. ' He has made no objection to the finding of facts by the commissioner, and thus has impliedly assented to a hearing before the judge on an agreed statement of facts. As this is not a criminal proceeding, I think this court has jurisdiction to deal with his deportation, either as an original proceeding, or on appeal from the commissioner. It matters not which. See Chin Bak Kan.v. U.S. (decided June 2, 1902) 22 Sup.Ct. 891, 46 L.Ed.-- .

We now come to the merits of the case. Prior to 1880 substantially all Chinese, laborers or others, were permitted to enter the United States and remain there. By the act of 1882, following upon the treaty of 1880, the coming of Chinese laborers to the United States was forbidden ('suspended '). Chinese laborers then in the country were not affected by the act or treaty. They might remain in the United States without more. They might depart from the United States and return thereto by going through certain formalities. Chinese, not laborers, might remain in the United States without formality, and might enter the United States for the first time by going through certain formalities. The commissioner's finding at the hearing before me was assumed to mean that Chin Ark Wing's original coming to the United States was lawful, and he must be taken to have arrived here before the act of 1882 went into effect. The act of 1892 required the registration within a certain time of all Chinese laborers then lawfully residing in the United States, and directed the deportation of every Chinese laborer who did not so register, 'unless he shall establish clearly to the satisfaction of said judge that by reason of accident, sickness or other unavoidable cause, he has been unable to procure his certificate, and to the satisfaction of the court, and by one at least credible white witness, that he was a resident of the United States at the time of the passage of this act; and if upon the hearing it shall appear that he is so entitled to a certificate, it shall be granted upon his paying the cost.' All Chinese, not laborers having a right to remain in the United States, were permitted to register, but not required to do so. The act of 1893 extended the time during which Chinese laborers might...