In re Chung Toy Ho
| Decision Date | 23 May 1890 |
| Citation | 42 F. 398 |
| Parties | In re CHUNG TOY HO AND WONG CHOY SIN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
(Syllabus by the Court.)
Mr Paul R. Deady, for petitioners.
Mr Franklin P. Mayo, for the United States.
These two cases were heard together. The petitioners are the wife and child of Wong Ham, a well-known Chinese merchant resident in Portland, Or., for some years past.
A short time since, he visited China, and returned here on the American bark Coloma, bringing with him the petitioners, who had never been in the United States. He, (Wong Ham,) being provided with the certificate required by section 6 of the act of July 5, 1884, (23 St. 116,) was allowed to land; but the petitioners having no such certificate, their right to land was denied by the collector.
They then sued out writs of habeas corpus, directed to the master of the Coloma, who made return admitting the facts stated in the petition and the detention, and stating the cause thereof to be the refusal of the collector to allow the petitioners to land.
The district attorney was allowed to intervene on behalf of the United States, and the cases were heard on the facts stated in the respective petitions.
The action of the collector in refusing to allow the petitioners to land was based on a decision of the treasury department of August 19, 1889, (Treasury Decisions, 409,) in which it was said that the wife of a Chinese merchant who has never been in the United States cannot be allowed to enter the United States, with or without her husband, otherwise than upon the production of the certificate required by section 6 of the act of July 5, 1884.
By the treaty with China of November 17, 1880, (22 St. 13, art. 2,) it is provided, that--
'Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.'
By section 6 of the act of July 5, 1884, (23 St. 116,) professedly passed 'to execute' the stipulations of this treaty, a certain certificate is required for the admission into the United States of 'every Chinese person,' other than a laborer, who may be entitled by said treaty to such admission.
Then came the act of October 1, 1888, (25 St. 504,) by which the coming or return of Chinese laborers to the United States is absolutely forbidden.
The manifest purpose of this legislation is to exclude Chinese laborers from coming or returning to the United States. The other classes-- 'teacher, student, and merchant'-- are not required to have certificates before they can be admitted into the country, because their admission is intended to be restrained or limited, but to prevent laborers from being admitted under the guise or in the character of such classes.
There is no limitation on the right of these classes to come within and dwell in the United States. The statute only requires that such a person shall furnish the prescribed evidence that he belongs to one of these favored classes, when he may come and go at pleasure.
The admission of the petitioners is not within the mischief that the exclusion act was intended to remedy. They are both females, the child being about eight years of age. It is common knowledge that Chinese women are not laborers. The station in life of the petitioners, being the wife and child of a merchant, also shows they do not belong to the laboring class.
The petitioners are not within the purview of the exclusion act of 1888; which is confined to laborers. Do they come within that of section 6...
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Ex parte Chiu Shee
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