United States v. Tom Wah

• Decision Date: 12 March 1908
• Citation: 160 F. 207
• Parties: UNITED STATES v. TOM WAH.
• Court: U.S. District Court — Northern District of New York

160 F. 207

UNITED STATES v. TOM WAH.

United States District Court, N.D. New York.

March 12, 1908

Geo. B Curtiss, H. E. Owen, and Alford W. Cooley, for the United states.

R. M Moore and B. W. Berry, for defendant.

RAY District Judge.

This is a proceeding, under the Chinese exclusion act, for the deportation of the above-named defendant, Tom Wah, who asserts the right to remain and be in the United States on the ground that he is a citizen thereof. His claim is that he was born in the United States, and is therefore entitled to be and remain here. The United States denies this, and seeks his deportation. On the trial of this question before Benjamin L. Wells, one of the commissioners of the United States in and for the Northern district of New York, duly appointed by the District Court and district Judge of the said district, and after the said Tom Wah had produced a witness who gave evidence tending to show that said Tom Wah was born in the United States, and rested, the United States having duly subpoenaed him, called said Tom Wah as a witness in its behalf, presumably to show or give evidence tending to show that he was not born in the United States, and therefore is not entitled to be or remain here. Tom Wah took the stand before the commissioner, and, on advice of counsel, refused to be sworn or testify or answer questions relevant and material to the issues being tried then and there put to him. Thereupon the matter and facts were certified to this court for such directions and order as it shall see fit to make in the premises. The commissioner held he had no power to compel the witness to be sworn, or to commit or punish him in any way for refusing to be sworn, or to testify, or to punish him for contempt. This is an important question, and one in which the government as well as all Chinese persons are deeply interested.

United States Commissioners are neither judges nor courts, nor do they hold courts, although sometimes they act, so far as jurisdiction and power is conferred upon them, in a quasi judicial capacity. Todd v. United States, 158 U.S 282, 15 Sup.Ct. 889, 39 L.Ed. 982; Ex parte Hennen, 13 Pet. (U.S.) 230, 10 L.Ed. 138; United States v. Allred, 155 U.S. 591, 15 Sup.Ct. 231,39 L.Ed. 273; United States v. Clark, 1 Gall. 497, Fed. Cas. No. 14,804; In re Perkins (D.C) 100 F. 950; United States v. Beavers (D.C.) 125 F. 778. When exercising their powers, they do not sit as courts; nor do they possess the power of courts, except in so far as the acts of Congress conferring certain authority and imposing certain duties upon them specially mention certain powers. They may do what they are authorized to do, but no more. Same cases. All courts of record have the inherent power to enforce their orders and mandates by punishment as for a contempt of court unless the law creating them expressly limits that power. Rapalje on Contem

pts, 1, and numerous cases cited; Bessette v. W. B. Conkey, 194 U.S. 324, 326, 24 Sup.Ct. 665, 48 L.Ed. 997; Ex parte Robinson, 19 Wall. 505, 510, 20 L.Ed. 205;

In re Chiles, 22 Wall. 157, 168, 22 L.Ed. 819.

Says the court, per Brewer, J., in Bessette v. W. B. Conkey Co., supra:

'The power to punish for contempt is inherent in all courts.'

In Ex parte Robinson, supra, the Supreme Court said:

'The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831. The act in terms applies to all courts. Whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is therefore to them the law specifying the cases in which summary punishment for contempts may be inflicted.'

By Act Cong. March 2, 1831, c. 99, 4 Stat. 487 (Rev. St. Sec. 725 (U.S. Comp. St. 1901, p. 583)), this power is limited as follows:

'That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness or other person, to any lawful writ, process, order, rule, decree or command of the said courts.'

By the very terms of the act a witness duly subpoenaed may be punished for contempt in refusing to obey its commands. It may be doubted whether Congress may create a court, and thereafter so limit its powers as to deprive it of the ordinary and necessary powers of a court. This would be to deprive it of one of its most essential attributes. No doubt the manner of its exercise may be prescribed as matter of procedure. But, however this may be, as United States commissioners of this class, those now appointed by the district judges and District Courts, are not courts, do not hold courts in the proper sense of the term 'courts,' they do not possess the inherent power to punish a refusal to obey their own processes and mandates, and, as such power is not expressly granted or conferred, there must be a resort to some tribunal having power if their mandates are to be enforced. As the power to enforce their processes is not specially conferred by the Chinese deportation act or elsewhere on these commissioners, there is no authority vested in a commissioner of the United States sitting in a Chinese deportation case to compel a witness duly subpoenaed to be sworn or to give evidence. If a witness subpoenaed in such a case can be compelled to be sworn, the power must be exercised by some other tribunal or officer. As a commissioner of this class is an officer, or an arm, of the court appointing him, it would seem that such court or a judge thereof ought to have power to make such orders, and compel obedience thereto, as will enable such commissioner to properly exercise or discharge his functions, exercise and make effectual the powers committed to or conferred upon him by Congress.

Jurisdiction in Chinese cases and in certain criminal cases having been conferred on such commissioners, officers of this court, it would seem there must be power somewhere to compel witnesses duly called before them by subpoena to be sworn and answer material questions. If this is not the law, then United States commissioners may as well go out of business; for, as soon as that fact is judicially declared, and until Congress acts, they would be powerless to compel witnesses to be sworn, and, as the court or judge appointing them is also declared powerless, as are all other courts, all unwilling witnesses will avail themselves of the right, and sit unsworn and silent. The administration of justice would thus be hampered, and in many cases defeated.

I am therefore of the opinion that the acts of Congress which confer on United States commissioners the authority to hear and decide these Chinese cases in the first instance commit the jurisdiction of such cases to the United States District Courts, prescribing the officers of that court who shall take cognizance of them in the first instance with right of appeal to the District Court (The U.S. Petitioner, 194 U.S. 194, 24 Sup.Ct. 629, 48 L.Ed. 931), and that the court has power to come to the aid of these officers and enforce their lawful orders and mandates in all proper ways; that the court may direct witnesses,...