United States v. Foo Duck

• Decision Date: 13 September 1909
• Docket Number: 1,681.
• Citation: 172 F. 856
• Parties: UNITED STATES v. FOO DUCK.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F. 856

UNITED STATES v. FOO DUCK.

No. 1,681.

United States Court of Appeals, Ninth Circuit.

September 13, 1909

Appeal from the District Court of the United States for the District of Montana.

Proceeding by the United States for the exclusion of Foo Duck, a Chinese person, alleged to be unlawfully within the United States. From a decree discharging defendant from custody (163 F 440), the United States appeals. Affirmed.

James W. Freeman, U.S. Atty., and S. C. Ford, Asst. U.S. Atty.

Thomas C. Marshall, A. L. Duncan, and Woody & Woody, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is an appeal from an order of discharge entered by the judge of the district court for the district of Montana in the proceedings instituted by Howard D. Ebey, Chinese Inspector charging that the appellee, Foo Duck, had on or about the 26th day of September, 1907, been found unlawfully within the United States.

The facts agreed upon by the United States attorney and counsel representing the defendant, and stated in the opinion of the district judge, are as follows: The father of the defendant is a Chinaman, a merchant, in Missoula, Mont., and has been engaged in the mercantile business in that city for over 15 years. The defendant is over 23 years old. He arrived in the United States in May, 1901, when he was over 16 years old. He had a certificate issued under the treaty between the United States and China, and in apparent conformity with section 6 of the act of Congress approved July 5, 1884 (chapter 220, 23 Stat. 116 (U.S. Comp. St. 1901, p. 1307)) .

In this certificate he gave his former and present occupation as student. After the defendant arrived in Missoula, he worked as a cook and waiter at different times for several years. Part of the time he was helping the matron at the University of Montana, which is situated in Missoula, and while in this position, with the aid of the matron, he studied the English language, and learned to speak and read and write the same. He speaks English quite well, wears short hair, dresses as an American, and has evidently studied considerably. The appellant was admitted into the United States as a student in May, 1901, in accordance with the permission granted and the identification made by a certificate issued by the Registrar General at Hongkong and vised by the acting United States Consul General at the same place. This certificate was issued under the provision of article 2 of the treaty between the United States and China concerning immigration, dated November 17, 1880 (22 Stat. 827), article 3 of the Convention of December 8, 1894 (28 Stat. 1211), and section 6 of the act approved May 6, 1882 (Act May 6, 1882, c. 126, 22 Stat. 60) as amended by the act approved July 5, 1884 (Act July 5, 1884, c. 220, 23 Stat. 116 (U.S. Comp. St. 1901, p. 1307)), continued in force by act of May 5, 1892 (chapter 60, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1319)) and with all laws on the subject re-enacted, extended, and continued without modification, limitation, or condition by the act of April 29, 1902 (chapter 641, 32 Stat. 176 (U.S. Comp. St. Supp. 1907, p. 414)), as amended by the act of April 27, 1904 (chapter 1630, 33 Stat. 428).

In addition to this certificate, the appellant was at the time of his arrival a minor child of a merchant residing at Missoula, Mont., in the United States. In that relation he would have been admitted into the United States without a certificate. United States v. Mrs. Gue Lim, 176 U.S. 459, 20 Sup.Ct. 415, 44 L.Ed. 544. In that case Gue Lim was the wife of Fook Kee, a Chinese merchant engaged in buying and selling merchandise in the city of Seattle, in the state of Washington. She arrived and was admitted into the United States without the production of the certificate mentioned in section 6 of the act of July 5, 1884. The court held that such a certificate was not required of the wife of a merchant domiciled in this country. Under the title of this case, there were also appeals from the United States District Court for the District of Washington discharging certain minor children from arrest upon the charge of being unlawfully within the United States. These appellants were the minor children of a Chinese merchant lawfully residing and doing business in the city of Walla Walla, in the state of Washington. They had also been admitted into the United States without having produced the certificate required by the act of July 5, 1884. They relied entirely upon the status of their father as a merchant residing in this country. With respect to the minor children, the court said:

'In the case of minor children, the same result must follow as in that of the wife. All the

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