In re Chin Wah

• Decision Date: 17 October 1910
• Docket Number: 5,253.
• Citation: 182 F. 256
• Parties: In re CHIN WAH.
• Court: U.S. Court of Appeals — Ninth Circuit

182 F. 256

In re CHIN WAH.

No. 5,253.

United States District Court, D. Oregon.

October 17, 1910

Roger B. Sinnott and William W. Banks, for petitioner.

Walter H. Evans, Asst. U.S. Atty.

BEAN District Judge.

Chin Wah was arrested for deportation, charged with being a Chinese laborer in the United States without a certificate of residence or other document entitling him to remain, in violation of the Exclusion Act of May 5, 1892 (Act May 5 1892, c. 60, Sec. 6, 27 Stat. 25), as amended (Act Nov. 3 1893, c. 14, Sec. 1, 28 Stat. 7 (U.S. Comp. St. 1901, p 1320)). After hearing before a commissioner he was ordered deported and has appealed to this court. He moves to be admitted to bail pending the hearing.

The district attorney's office objects to the allowance of the motion on the ground that the court has no power to admit to bail a Chinese arrested for deportation, charged with being in the country without the required certificate. There is no statutory law regulating the practice in this regard. The proceeding authorized by section 6 of the exclusion act for the arrest, trial, and deportation of Chinese found in this country without the necessary certificate, is in no proper sense a criminal proceeding, but is merely an appropriate and lawful means of ascertaining the facts whether the conditions exist upon which Congress has enacted that an alien of this class may remain in this country.

The constitutional and statutory provisions guaranteeing the right of trial by jury, prohibiting unlawful seizure and search, cruel and inhuman punishment, the deprivation of life, limb or property without due process of law, and regulating the admission to bail in criminal cases, have no application to such a proceeding. Fong Yui Ting v. U.S Wong Quan v. U.S., and Lee Joe v. U.S., 149 U.S. 698, 13 Sup.Ct. 1016, 37 L.Ed. 905.

Neither do the provisions of sections 942 to 945, Revised Statutes (pages 693 and 694, U.S. Comp. St. 1901), regulating bail in civil cases, have little or any apparent direct application. The proceedings for the deportation of Chinese are sui generis. They are authoritatively declared not to be criminal, yet in many of their features they closely resemble criminal proceedings. They are initiated by the arrest of the accused. He is restrained of his liberty under a warrant authorizing the seizure of his person and his confinement in prison in advance of a hearing or an opportunity to meet the charge against him in a judicial tribunal prior to his arrest. Unless he can show that he has complied with the law, he is punished by being banished or deported and forcibly removed from the country. In these particulars at least the proceedings are quite analogous to a criminal action, and of as great and in many instances greater importance to the defendant. In my judgment a tribunal which has authority to hear and determine a charge of such moment has the inherent power, unless prohibited by statute, to admit the accused to bail pending his examination. The power to bail in such a case is inherent, and incident to the power to hear and determine. 3 A. & E.Enc. 691; cases cited by counsel; Wright v. Henkel, 190 U.S. 40-51, 23 Sup.Ct. 781, 47 L.Ed. 948. It logically follows, from its power to hear and discharge on final hearing, that the court has power to grant a temporary discharge on bail pending such hearing. By the arrest the alleged offender is brought under the jurisdiction and control of the court, and, as stated by Judge Sawyer, pending the proceedings to determine his rights, it can temporarily and provisionally commit him to the custody of the marshal or admit him to bail. In re Ah Moy (C.C.) 21 F. 808.

Such has been the practice of this court and of the courts generally, so far as I am advised, ever since the passage of the first exclusion act, except in the case of Chinese seeking to land and after a final order of deportation, in which cases bail is prohibited by statute. No adjudicated case has been called to my attention in which the question here presented has arisen, holding that the court has no power to admit to bail. On the contrary, Judge Lowell, of Massachusetts, and Judge Knowles, of Montana, have both held in well-considered opinions, in the reasoning of which I fully concur, that such power does exist. In re Ah Tai (D.C.) 125 F. 795; In re Lum Poy (C.C.) 128 F 974. To refuse bail would, in some...