Lew Quen Wo v. United States

• Decision Date: 06 February 1911
• Docket Number: 1,853.
• Citation: 184 F. 685
• Parties: LEW QUEN WO v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

184 F. 685

LEW QUEN WO v. UNITED STATES.

No. 1,853.

United States Court of Appeals, Ninth Circuit.

February 6, 1911

Appeal from the District Court of the United States for the Northern District of California.

George A. McGowan and Alfred L. Worley, for appellant.

Robert T. Devlin, U.S. Atty., and A. P. Black, Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HANFORD, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

It is contended that Lew Fong, the father of the appellant, was not, at the time when the appellant was permitted to land in the United States, a laborer within the meaning of the exclusion acts (Act Nov. 3, 1893, c. 14, Sec. 2, 28 Stat. 8 (U.S. Comp. St. 1901, p. 1322)), for the reason that he was a merchant and was not engaged in manual labor for wages or for hire, but worked upon his own account, and nor as the employe of any one, in farming and raising and marketing fruit on land which he had rented. While some of the earlier decisions under the Chinese exclusion laws give color to the appellant's contention that the meaning of the word 'laborer' as used in those laws is one who works for another for wages (In re Ho King (D.C.) 14 F. 724) the later decisions are harmonious in holding that the term should not be so restricted. This is held in view of the language of the treaty to give force to which the legislation was enacted, and in view of the more recent enactments of Congress. In Lee Ah Yin v. United States, 116 F. 614, 54 C.C.A. 70, we held, upon a consideration of the memoranda submitted and discussed in the negotiations between the high contracting powers which culminated in the adoption of the treaty of 1880 (Treaty with China, Nov. 17, 1880, 22 Stat. 826), and the subsequent legislation of Congress to carry out the provisions thereof that the words 'Chinese laborers' as used were intended to designate all immigration to the United States from China other than that of the privileged classes, who were, by the terms of the treaty, permitted to come for the purpose of teaching, trade, travel, study, and curiosity, and we held that the Geary act, approved May 5, 1892 (Act May 5, 1892, c. 60, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1319)), adopted the words 'Chinese laborers' with the meaning attached thereto by the treaties.

That Chinese laborers who work for hire only are not the only laborers excluded within the meaning of the acts of Congress is shown by Act Nov. 3, 1893, c. 14, Sec. 2, 28 Stat. 8 (U.S Comp. St. 1901, p. 1322), in which it was declared that the words 'laborer or laborers' 'shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying or otherwise preserving shell or other fish for home consumption or exportation. ' By this statute, which was intended to make certain as included within the designation of laborers those whose occupation might, in some aspects, be regarded as belonging to the mercantile class, Congress enumerated as within the term 'laborers' those who were working upon their own account and not for hire in certain mentioned occupations, the product of which was sold to others. The act does not declare, and its meaning is not to say, that those only who are engaged in those occupations so specified shall be deemed laborers. It was perhaps impossible to enumerate all the classes of occupations of the general nature of those mentioned, but the act clearly intends to make a distinction between merchants who buy and sell goods at a fixed place of business, and all those who sell goods which are the product of their own labor, or who sell goods which they have purchased to vend at no fixed place of business. Now, the farmer or fruit grower, who leases land and tills the same and labors in the production of a crop which he sells to others, is engaged in an occupation similar to that of those who are engaged in mining, fishing, or drying fish for home consumption or exportation. Lew Fong, as the owner of an interest of $500 in a general merchandise store, would have been a merchant within the meaning of the acts, and his status as a merchant would not have been affected had he performed only manual labor such as might have been necessary in the conduct of his business as a merchant; but here the labor which he performed was aside and entirely distinct from his business as a merchant, and therefore, at the time when the appellant was landed in the United States, Lew Fong was not one of the privileged class of persons who are entitled to enter the United...