United States v. Hing

• Citation: 76 P. 639,8 Ariz. 416
• Decision Date: 26 March 1904
• Docket Number: Civil 826
• Parties: UNITED STATES OF AMERICA, Plaintiff and Appellant, v. GIN HING, Defendant and Appellee
• Court: Supreme Court of Arizona

76 P. 639

8 Ariz. 416

UNITED STATES OF AMERICA, Plaintiff and Appellant, v. GIN HING, Defendant and Appellee

Civil No. 826

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the First Judicial District. George R. Davis, Judge. Reversed.

The facts are stated in the opinion.

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

No appearance for Appellee.

OPINION

KENT, C.J.

-- Gin Hing, a Chinese person, was ordered by a United States commissioner to be deported to China. An appeal was taken from the order, and a trial thereunder had in the court below. Gin Hing, the defendant, the appellee in this court offered in evidence in the court below, as proof of his right to enter and to be in the United States, a certificate issued at Hong Kong, the last place of his residence before coming to this country, under the provisions of the Chinese Exclusion Act. The certificate so offered stated that the former occupation of the defendant was a grocer in Sun Wing that his present occupation, which he had pursued for thirteen months, was that of a salesman in a certain medicine shop in Hong Kong, and the certificate stated that he was going to San Francisco to take the place of his brother in a medicine shop in that city. The United States, the plaintiff, objected to the introduction of this certificate, on the ground that it was defective and invalid and not in the form required by law, and that it showed on its face that the defendant is such a person as is not permitted by law to come to the United States or remain therein. The court overruled the objection and received the certificate in evidence. Thereupon the defendant offered to show, by further testimony of the defendant, that he for many years prior to his coming to the United States had been, and at the time of his so coming was, and ever since had been, a merchant, to which offer the district attorney objected, upon the ground that such testimony was incompetent, irrelevant, and immaterial, because the certificate constitutes the sole evidence of the defendant's right to be in the United States; the facts in the certificate not being controverted by the plaintiff. The objection to the introduction of such testimony being overruled by the court, and the plaintiff having duly excepted thereto, the plaintiff then admitted the fact to be that the defendant was then, and at the time of his coming to the United States and for many years prior thereto had been, a merchant. The court thereupon gave judgment that the defendant is a merchant, that he is entitled to remain in the United States, and that he be discharged. From this judgment the plaintiff appeals to this court.

The appeal in this case presents two questions for our consideration: First, whether the certificate offered in evidence by the defendant was sufficient to show that the defendant was one of the privileged classes entitled to enter and remain in the United States; and, second, whether evidence on the part of the defendant, other than the certificate, was properly admissible to establish that fact.

By act of July 5, 1884, c. 220 (23 Stats. 115, 1 Supp. Rev. Stats. U.S. 458 [U.S. Comp. Stats. 1901, p. 1305]), Congress enacted that every Chinese person other than a laborer, who may be entitled by the treaty of November 17, 1880, (22 Stats. 826,) or the act itself, to come within the United States, and who shall be about to come to the United States, shall procure a certificate, issued as therein provided, which certificate shall state among other things such person's present occupation or profession, that he is entitled by the said act to come within the United States, and, if the person shall be a merchant, the certificate shall state the nature, character, and estimated value of the business carried on by him prior to and at the time of his application. The act further provides that the certificate shall be the prima facie evidence of the facts set forth therein, and shall be produced to the collector of the port at which the person named therein shall arrive, and afterwards produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person producing the same to establish a right of entry into the United States; but said certificate may be controverted, and the facts therein stated disproved, by the United States authorities. The Chinese persons entitled by law to come to the United States and reside therein, when provided with such certificates, are Chinese subjects, being officials, teachers, students, merchants, or travelers for curiosity or pleasure. Treaty of November 17, 1880, (22 Stats. 826); Treaty of March 17, 1894, (28 Stats. 1210); Wan Shing v. United States, 140 U.S. 424, 11 S.Ct. 729, 35 L.Ed. 503.

The facts set forth in the certificate in this case clearly show that the defendant was not entitled to admission to the United States as either an official, teacher, student, or traveler for curiosity or pleasure; and, unless the word "salesman" can be construed to mean "merchant," the defendant, under this certificate is not within any of the classes of persons entitled by law to admission to the United States. The Standard Dictionary defines a salesman as "a man who sells goods in a shop or store or by canvassing." The word is generally accepted to mean a person who sells goods for a merchant, and not to mean the merchant himself. Congress, however, has defined the word as used in the Chinese Exclusion Act as follows: "A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his...