United States v. Chee

• Decision Date: 22 March 1907
• Docket Number: Civil 902
• Citation: 11 Ariz. 16,89 P. 525
• Parties: UNITED STATES OF AMERICA, Appellant, v. QUONG CHEE, Appellee
• Court: Arizona Supreme Court

89 P. 525

11 Ariz. 16

UNITED STATES OF AMERICA, Appellant, v. QUONG CHEE, Appellee

Civil No. 902

Supreme Court of Arizona

March 22, 1907

APPEAL from a judgment of the District Court of the Third Judicial District. Edward Kent, Judge. Affirmed.

Quong Chee, a Chinese person, came from China to the United States in the year 1871, and from that time until 1891 was a merchant in Phoenix, Arizona. In 1880 he returned to China and stayed there ten months, re-entering the United States in 1881, and in 1891, while still a merchant in Phoenix, he again returned to China, from which place he again re-entered the United States in 1897, and remained thereafter for several months in Phoenix, attempting to collect debts resulting from his business as a merchant in and prior to 1891. He removed thereafter from Phoenix to Globe, Arizona where he was for five or six years a restaurant-keeper. In 1904, while so engaged, he was arrested upon the charge of being unlawfully in the United States, "he being a Chinese person, a laborer without the certificate required by law," and was taken before a United States commissioner by whom he was ordered deported, from which order he appealed to the district court of the third judicial district. Upon the trial in the district court, the United States offered testimony to show that the defendant was a Chinese person born in China, and rested. The defendant then offered in evidence a merchant's certificate, vised by United States vice-consul at Canton, China, December 24, 1896, upon which he was landed from the ship "Gaelic," by the collector and inspector of the port of San Francisco on January 27, 1897, and his own testimony, and, when he offered the testimony of two white witnesses, the United States admitted: "That defendant came to the United States in 1871, and remained here until 1880, and then returned to China and stayed there ten months, returning to the United States in 1881, and remained here, and, from that time until 1891, was a merchant in Phoenix, Arizona, and during said time doing no manual labor, and that those facts can be established in this court by the testimony of two white witnesses. That in 1891, while still a mechant in Phoenix, he returned to China. That in 1897 the defendant returned to the United States, and came to Phoenix, remained in Phoenix a short time, and for the last five or six years has been a restaurant-keeper in Globe, Arizona, and was engaged in that business in Globe, Arizona, when arrested upon the complaint in this case." Defendant then rested, and the United States then read in evidence depositions that had been taken and filed in the case, touching the business in which defendant had been engaged since coming to Globe. The case was then submitted, and the court found that "the defendant was a Chinese person, and that he came to the United States from China in the year 1871, and from that time until 1891 was a merchant in Phoenix, Arizona, and that in 1891, having done no manual labor for more than one year prior thereto, he returned to China for a temporary purpose and with the intention of returning to the United States. That in the year 1897 he returned to the United States, and remained several months in Phoenix attempting to collect debts, doing no manual labor, and that some time thereafter he became a restaurant-keeper in Globe, Arizona, which occupation he was pursuing at the time of his arrest." From these facts, the court found that "the defendant, at the time of his departure from the United States in 1891, and the time of his return thereto in 1897, was a Chinese merchant of the United States, and at the time of his arrest entitled to remain within the United States," and ordered his discharge from custody. From the judgment of the district court, and the denial of a motion for a new trial, the United States attorney appealed, and has assigned as errors that the court erred: 1. In overruling plaintiff's objection to the introduction in evidence of the merchant's certificate, for the reason that it fails to comply with the statute, which requires that the certificate shall state ". . . that such person is entitled by this act to come into the United States." 2. After admitting the certificate in evidence, in overruling the plaintiff's objection to the defendant's offer of testimony of two white witnesses to show that he had been engaged as a merchant in Phoenix, Arizona, from the year 1871 to the year 1891, and that during that time he had performed no manual labor, for the reasons (1) that the certificate which had been admitted in evidence is made by law the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; (2) that the testimony offered is immaterial, for the reason that the defendant, as shown by the said certificate, had been a resident merchant of China from 1891 to 1897, and had therefore forfeited any right he might otherwise have had to enter the United States as a resident merchant of the United States; (3) it not being shown or offered to be shown that the defendant had adduced this testimony before the collector of customs upon his admission to the United States in 1887, at which time the certificate disclosed that he had entered the United States, he could not now make such proof. 3. In overruling the objection of the United States to the admission of defendant's testimony in his own behalf, for the reasons (1) that by law, the certificate, which was admitted in evidence, is "the sole evidence permissible on the part of the person so producing the same, to establish a right of entry to the United States; (2) that the testimony disclosed, and each question tended to elicit, facts contradictory of the certificate, on which he rested his claim to the right to enter the United States. 4. In entering judgment for the defendant, for the reason that the evidence discloses that the defendant is a Chinese person unlawfully in the United States, in that (1) he is a laborer without the required laborer's certificate of residence; (2) he is a laborer, and entered the United States at a time when Chinese laborers were denied admission into the United States. 5. In denying the motion for a new trial upon the further grounds that the evidence does not sustain the judgment.

Frederick S. Nave, United States Attorney, and John H. Campbell, Assistant United States Attorney, for the United States.

The burden to establish his right to be in the United States is by law cast upon the defendant. Sec. 3, Act of Cong. May 5 1892, 27 Stat. 25. The district court erred in overruling plaintiff's objection to the admission in evidence of the merchant's certificate offered by defendant and admitted in evidence, for the reason that it failed to comply with the statute which requires that the "certificate shall state . . . that such person is entitled by this act to come within the United States." United States v. Gin Hing, 8 Ariz. 416, 76 P. 639, 640; Cheung Pang v. United States, 133 F. 392, 66 C.C.A. 454; United States v. Pin Kwan, 100 F. 609, 40 C.C.A. 618; United States v. Chu Chee, 93 F. 797, 35 C.C.A. 613. After admitting the certificate in evidence, the court erred in overruling the plaintiff's objection to the defendant's offer of two white witnesses to show that he had been engaged as a merchant in Phoenix, Arizona, from the year 1871 to the year 1891, and that during that time he had performed no manual labor. The certificate which had been admitted in evidence is made by law "the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States." Sec. 6, Act Cong. of July 5, 1884, 23 Stat. 116. Even were testimony admissible to supplement the certificate, the offer made was inadmissible by reason of the fact that the place of residence and manner of business of the defendant at some former time were immaterial under the evidence already in. By taking up his residence in Chick Hom, China, and by taking up the business of merchant there, the defendant unquestionably forfeited all rights (if any there were) acquired by him during a former period of residence within the United States. Wan Shing v. United States, 140 U.S. 424, 11 S.Ct. 729, 35 L.Ed. 503; interpreted in the latter part of the opinion in Lau Ow Bew v. United States, 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340. When on January 23, 1897, the defendant sought to be landed in San Francisco from the steamship "Gaelic," it was his duty, under the law, to make proof to the collector of customs of his right to enter the United States. Sec. 12, Act Cong. Sept. 13, 1888, 25 Stat. 478; Li Sing v. United States, 180 U.S. 486, 21 S.Ct. 449, 45 L.Ed. 634; United States v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917. Every Chinese person, unless he belongs to one of the classes expressly privileged by law to enter the United States, is classed as a "laborer" within the meaning of the statute. Specifically, a restaurant-keeper is a laborer. United States v. Chung Ki Foon, 83 F. 143; Re Ah Yow, 59 F. 561; Mar Bing Guey v. United States, 97 F. 576; Lee Ah Yin v. United States, 116 F. 614, 54 C.C.A. 70; United States v. Ah Fawn, 57 F. 591; United States v. Pin Kwan, 100 F. 609, 40 C.C.A. 618. Since this case was tried, it has been finally and authoritatively decided by the circuit court of appeals that though a Chinese person entered the United States as a merchant, afterward having become a laborer he must be deported. Cheung Him Nin v. United States, 133 F. 391, 66 C.C.A. 453. The purpose of the Chinese exclusion laws is to effect an absolute prohibition of entry into the United States of Chinese persons who shall compete with American labor. A Chinese person coming into the...