United States v. Stump

• Decision Date: 05 July 1923
• Docket Number: 2112.
• Parties: UNITED STATES ex rel. LUM YOUNG v. STUMP, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Fourth Circuit

292 F. 354

UNITED STATES ex rel. LUM YOUNG v. STUMP, Commissioner of Immigration.

No. 2112.

United States Court of Appeals, Fourth Circuit.

July 5, 1923

Clement L. Bouve, of Washington, D.C. (A. Warner Parker, of Washington, D.C., and George Forbes and Henry L. Wortche both of Baltimore, Md., on the brief), for appellant.

A. W W. Woodcock, U.S. Atty., of Baltimore, Md., for appellee.

Before WOODS and WADDILL, Circuit Judges, and McDOWELL, District judge.

WADDILL Circuit Judge.

This is a habeas corpus proceeding involving the right of the appellant petitioner, of Chinese birth and nationality, and by occupation a bona fide seaman, employed as such on the American steamship Oritani of the Oriental Navigation Company's line, to go on shore leave temporarily while his ship was in the port of Baltimore, without first executing bond prescribed by the rules of the Secretary of Labor, conditioned for his leaving the country within 60 days from the date of his landing.

The hearing was upon the petition for a writ of habeas corpus the writ, and the return of the respondent thereto. The facts were and are not seriously in dispute-- that is, that the appellant petitioner was restrained of his liberty on board of the ship Oritani pursuant to subdivision 11 of regulation 10 of the Department of Labor; that he was a Chinaman born in Hongkong; that he was 35 years of age; that he had been at sea 16 years, and was a bona fide seaman, sailing in and out of the ports of the United States, including the port of Baltimore; that at the time of his detention, on November 6 1922, he was on a voyage from the port of Boston, which commenced on the 28th of June, 1922; that he was detained by no other process, order, or judgment restraining him of his liberty; and that he belonged to no class disentitling him to entry into the United States, unless as a bona fide Chinese sailor he was prohibited from so doing.

The case turns entirely upon the interpretation of the statutes of the United States, and the rules and regulations passed in pursuance thereof, properly applicable. The respondent insists that the appellant was an alien excluded by the laws of the United States from entering the country, and was not entitled to citizenship, domicile, or residence therein, and that the statute and rules and regulations of which he complained were valid and lawfully enforced.

The question presented is by no means a new one, as the rights of alien seamen, including those of Chinese nationality, to shore leave, have frequently been the subject of review by the courts, and particularly where bona fide seamen, on voyages in and out of the harbors of this country, have been refused the right to land under the excluding or restrictive provisions of the treaty between the United States and China, or the Chinese Exclusion Acts, or of the provisions of the Emigration Acts of the United States, and not otherwise lawfully restrained from such leave or denied the same because of health conditions. Treaty with China, November 17, 1880, 22 Stat. 826; Act executing same of May 6, 1882, 22 Stat. 58, as amended July 5, 1884, 23 Stat. 115. A careful review of these decisions will be found to contain nothing opposed to the right of the appellant to the relief sought, but support the same. There is no case under the facts here, where the right to shore leave has been denied to a bona fide foreign seaman passing in and out of the harbors of the United States in the lawful exercise of his business. Seamen as such are not within any inhibited class, and from their business and calling are not persons seeking to gain admission to this country in the sense of becoming a part of the same, or citizens thereof; but, on the contrary, while engaged in their lawful avocations as seamen, navigating the seas, they seek merely the right to pass in and out of our ports and harbors. Our treaties and laws have with care prescribed those who may and who may not come within our borders, and too much pains cannot be taken to see that the restrictive provisions respecting vicious and undesirable incomers are rigidly enforced. But this should not cause us to stretch such laws, and the requirements imposed under them, in the effort to better out domestic conditions, so as to make them applicable to persons and things not within their purview.

Reference may be made to some of the more important decisions supporting the views herein expressed. In one of the early cases on the subject, Judge Deady, of the Circuit Court of Oregon (14 F. 47) said:

'Nor do I think that the Chinese members of the crew of the Patrician are 'laborers' within the meaning of this act. True, their vocation is labor. But they are not brought here to remain and enter into competition with the labor of the inhabitants of the country. They labor upon the high seas in the navigation of a vessel engaged in the exchange of commodities between this country and other parts of the world. ' In re Moncan (C.C.) 14 F. 44, 47.

And Judge Addison Brown, of the Southern District of New York, about the same time (22 F. 520) said:

'Such persons do not come 'to the United States as laborers'-- i.e., as laborers within the United States, in the sense of the act-- and hence 'are not included in the limitations.' ' In re Ah Kee (D.C.) 22 F. 519, 520.

Judge Toulmin, of the Southern District of Alabama, considering the same subject in a full and comprehensive opinion (99 F. 898) said:

'A consideration of the whole legislation on the subject of alien immigration, of the circumstances surrounding its enactment, and of the unjust results which would follow from giving such meaning to it as is here claimed for it, makes it unreasonable to believe that Congress intended to include a case like the present one. My opinion is that these statutes do not contemplate the exclusion of the crews of vessels which lawfully trade to our ports, and that they do not, in spirit or in letter, apply to seamen engaged in their calling, whose home is the sea, who are here to-day and gone tomorrow, who come on a vessel into the United States with no purpose to reside therein, but with the intention, when they come, of leaving again, on that or some other vessel, for the port of shipment or some other foreign port in the course of her trade. To hold that these statutes apply to aliens comprising the bona fide crews of vessels engaged in commerce between the United States and foreign countries would lead to great injustice to such vessels, oppression to their crews, and serious consequences to commerce. ' United States ex re. Andersen v. Burke, Collector (C.C.) 99 F. 895, 898.

And Judge Learned Hand, of the Southern District of New York, fully considering and reviewing the same subject (185 F. 167), said:

'There seems to be no doubt on authority that a seaman is not a laborer. This has been held in a number of the decisions. In re Ah Kee (D.C.) 22 F. 519; In re Moncan (C.C.) 14 F. 44; In re Jam (D.C.) 101 F. 989. And it accords with the reasonable usage of words. * * * I have no doubt on principle that a seaman is not included in the term. * * * Therefore I hold that under the act of 1882, and the subsequent acts, a seaman is not a laborer, and so absolutely excluded.'

And (185 Fed.on page 168):

'If it be necessary to single out a word from the act, I should say that such a person was not one who was 'about to come to the United States,' and that the words mean 'come with the intention of remaining' at least for a period of time. Therefore I do not think that a Chinese seaman is within the meaning of section 9.' United States v. Jamieson (C.C.) 185 F. 165, 167, 168.

The meaning and effect of the Chinese Exclusion Acts, treaties, and conventions, and of our immigration laws, and the status of bona fide seaman passing in and out of our ports pursuant to the same, was fully considered in two able and comprehensive opinions of the Attorney General, in which the right to exclude such seamen was denied. 23 Op.Atty.Gen. 521, and 24 Op.Atty.Gen. 111.

The decisions of the Supreme Court of the United States are substantially to the same effect, and make it entirely clear that, in the view of that tribunal, the designation of a seaman, as such, does not include a laborer, either under the immigration laws, the Chinese Exclusion Laws, or our treaties and conventions with China. Mr. Justice Holmes, speaking for the Supreme Court (207 U.S. 125, 28 Sup.Ct. 54, 52 L.Ed. 130), said:

'The words must be taken in their literal sense. ' Landing from such vessel' takes place and is complete the moment the vessel is left and the shore reached. But it is necessary to commerce, as all admit, that sailors should go ashore, and no one believes that the statute intended altogether to prohibit their doing so. The contrary always has been understood of the earlier acts, in judicial decisions and executive practice. If we reject the ambiguous interpretation of 'to land,' as we have, the necessary result can be reached only by saying that the section does not apply to sailors carried to an American port with a bona fide intent to take them out again when the ship goes on, when not only there was no ground for supposing that they were making the voyage a pretext to get here, desert and get in, but there is no evidence that they were doing so in fact. ' Taylor v. United States, 207 U.S. 120, 125, 28 Sup.Ct. 53, 54 (52 L.Ed. 130).

The same court, speaking through Mr. Justice Clark (245 U.S. 125, 38 Sup.Ct. 29, 62 L.Ed. 189), said:

'The employment of the man to serve as a bona fide seaman on the Mackinaw is not questioned, and the allegations of the complaint negative any suspicion that the employment of him in China was a subterfuge adopted for the purpose of...