United States v. Wood

• Decision Date: 04 March 1909
• Parties: UNITED STATES v. WOOD.
• Court: U.S. District Court — District of New Jersey

168 F. 438

UNITED STATES v. WOOD.

United States District Court, D. New Jersey.

March 4, 1909

H. P Lindabury, Asst. U.S. Atty.

Convers & Kirlin (John M. Woolsey and Charles T. Cowenhoven, Jr., of counsel), for defendant.

CROSS District Judge.

There are in the indictment before the court two counts, both of which have been demurred to. Each of them charges in effect that the defendant on the 20th day of August, 1906, at the port of Constable Hook, within this district, and the jurisdiction of this court, then and there being the master of the steamship Highland Monarch, plying between the kingdom of Great Britain and the state of New Jersey, and then and there owned by a corporation known as the 'Monarch Steamship Company,' did then and there knowingly bring within the United States, on such vessel, to the port of Constable Hook, from a foreign port, to wit, Newcastle, in the kingdom of Great Britain, a certain Chinese laborer (giving his name), and did then and there knowingly land, and permit to land, within the said United States as aforesaid the said Chinese laborer (again naming him), contrary to the form of the statute, etc.

An indorsement on the indictment was undoubtedly intended to point out the acts of Congress upon which the indictment was founded. Such indorsement, however, did not in any wise conclude the government. The indictment will be upheld if there is any act in force which can sustain it, whether or not such act be specifically mentioned. Williams v United States, 168 U.S. 382, 18 Sup.Ct. 92, 42 L.Ed 509. A demurrer to an indictment charging the defendant herein with the same or a like offense was sustained in United States v. Wood (D.C.) 159 F. 187. The indictment in that case was found under the act of September 13, 1888, c. 1015, Sec. 9, 25 Stat. 478 (U.S. Comp. St. 1901, p. 1316), which is not among those referred to in the indorsement upon the back of the present indictment. It is manifest, however, upon examination, that the indictment now under consideration is insufficient under that act, for the reasons set forth in United States v. Wood, supra. It was therein held that section 9 of the act of 1888 does not in and of itself define a crime, and that a valid indictment under that section must negative the exceptions contained in section 10. It was the intention of the pleader in the present case, as appears by his indorsement on the indictment, to rest it upon the provisions of the act of May 6, 1882, c. 126, 22 Stat. 58, as amended by the act of July 5, 1884, c. 220, 23 Stat. 115 (U.S. Comp. St. 1901, p. 1305), but, aside from such indorsement, it is quite plain that, if the indictment can be sustained, it must be sustained under sections 2 and 3 of that act.

It is claimed, however, on behalf of the defendant, that those sections were impliedly repealed by the act of September 13, 1888. The question for decision, therefore, is, whether sections 2 and 3 of the act of 1882, as amended, were repealed, by implication, by sections 9 and 10 of the act of 1888. Sections 2 and 3 of the act of May 6, 1882, as amended, are as follows:

'Sec. 2. That the master of any vessel who shall knowingly bring within the United States on such vessel, and land, or attempt to land, or permit to be landed any Chinese laborer, from any foreign port or place, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not more than five hundred dollars for each and every such Chinese laborer so brought, and may also be imprisoned for a term not exceeding one year.

'Sec. 3. That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of the act to which this act is amendatory, nor shall said sections apply to Chinese laborers, who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States at which such vessel shall arrive, the evidence hereinafter in this act required of his being one of the laborers in this section mentioned; nor shall the two foregoing sections apply to the case of any master whose vessel, being bound to a port not within the United States, shall come within the jurisdiction of the United States by reason of being in distress or in stress of weather, or touching at any port of the United States on its voyage to any foreign port or place: Provided: that all Chinese laborers brought on such vessel, shall not be permitted to land except in case of absolute necessity, and must depart with the vessel on leaving port.'

For the sake of convenience, sections 9 and 10 of the act of 1888 are also set forth at length. They read as follows:

'Sec. 9. That the master of any vessel who shall knowingly bring within the United States on such vessel, and land, or attempt to land, or permit to be landed any Chinese laborer or other Chinese person, in contravention of the provisions of this act, shall be deemed guilty of a misdemeanor and, on conviction thereof, shall be punished with a fine of not less than five hundred dollars nor more than one thousand dollars, in the discretion of the court, for every Chinese laborer or other Chinese person so brought, and may also be imprisoned for a term of not less than one year, nor more than five years, in the discretion of the court.

'Sec. 10. That the foregoing section shall not apply to the case of any master whose vessel shall come within the jurisdiction of the United States in distress or under stress of weather, or touching at any port of the United States on its voyage to any foreign port or place. But Chinese laborers or persons on such vessel shall not be permitted to land, except in case of necessity, and must depart with the vessel on leaving port.'

Section 15 of the act of 1888 provided:

'That the act entitled 'An act to execute certain treaty stipulations relating to Chinese,' approved May sixth, eighteen hundred and eighty-two, and an act to amend said act approved July fifth, eighteen hundred and eighty-four, are hereby repealed to take effect upon the ratification of the pending treaty as provided in section one of this act.'

The treaty referred to in section 15, however, was not ratified, hence the acts of 1882 and 1884 were not affected by the repealing clause, and they are in force unless they have been repealed by implication. Notwithstanding the repealing clause of the act of 1888, just quoted, failed to take effect because the treaty therein referred to was not ratified, the act itself became operative, except as to certain sections whose subject-matter plainly presupposed the ratification of the treaty. United States v. Long Hop (D.C.) 55 F. 58; United States v. Yong Yew (D.C.) 83 F. 832, 835.

Furthermore, on April 29, 1902, Congress passed an act (Act April 29, 1902, c. 641, 32 Stat. 176 (U.S. Comp. St. Supp. 1907, p. 414)), by section 1 of which sections 5, 6, 7, 8, 9, 10, 11, 13, and 14 of the act of September 13, 1888, were expressly re-enacted. Again, on April 27, 1904, Congress passed still another act (Act April 27, 1904, c. 1630, 33 Stat. 428 (U.S. Comp. St. Supp. 1907, p. 414)), by the fifth section of which section 1 of the act of April 29, 1902, was amended so as in part to read as follows:

'All laws in force on the twenty-ninth day of April, nineteen hundred and two, regulating, suspending, or prohibiting the coming of Chinese persons or persons of Chinese descent into the United States, and the residence of such persons therein, including sections five, six, seven, eight, nine, ten, eleven, thirteen, and fourteen, of the act entitled 'An Act to prohibit the coming of Chinese laborers into the United States,' approved September thirteenth, eighteen hundred and eighty-eight be, and the same are hereby, re-enacted, extended, and continued, without modification, limitation, or condition.'

The purpose of the last two acts is defined in Hong Wing v. United States, 142 F. 128, 73 C.C.A. 346. By them sections 9 and 10, among others, of the act of September 13, 1888, were expressly reenacted. That those sections are consequently in full force and effect, there can be no doubt. But since by the act of April 27, 1904, Congress re-enacted not only the sections of the act of 1888 above enumerated, but also all of the Chinese exclusion acts which were then in force, the question still remains whether or not the act of 1882 was one of the acts then in force. In this connection it should be noted that much of the matter contained in section 3 of that act was in effect repealed by section 1 of the act of October 1, 1888, c. 1064, 25 Stat. 504 (U.S. Comp. St. 1901, p. 1318), which enacted:

'That from and after the passage of this act, it shall be unlawful for any Chinese laborer who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed, or shall depart therefrom, and shall not have returned before the passage of this act, to return to, or remain in the United States.'

After the passage of that act, it will be seen that all of the provisions of sections 2 and 3 of the act of 1882 which remain and are material to the crime alleged in this indictment are covered by sections 9 and 10 of the act of 1888. Under the circumstances, therefore, the later act must be taken as the final statement of the law in respect of the crime thus alleged. The elements which constitute the crime are the same in both acts, but the punishment is different. By the earlier act the punishment which might be imposed thereunder was limited to a fine of not more...