White v. Fong Gin Gee

• Decision Date: 17 May 1920
• Docket Number: 3375.
• Citation: 265 F. 600
• Parties: WHITE, Commissioner of Immigration, v. FONG GIN GEE. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

265 F. 600

WHITE, Commissioner of Immigration, v. FONG GIN GEE. ^[1]

No. 3375.

United States Court of Appeals, Ninth Circuit.

May 17, 1920

Annette Abbott Adams, U.S. Atty., and Ben F. Geis, Asst. U.S. Atty both of San Francisco, Cal., for appellant.

Joseph P. Fallon, of San Francisco, Cal., for appellee.

Before GILBERT, ROOS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

The appellee was at the time in question a Chinese boy of about 20 years of age, and sought entry into this country at the port of San Francisco upon the alleged ground that he was the son of a Chinese merchant named Fong Chung, doing business as a partner in the Chinese firm of Man Hop Company having a fixed place of business in the town of Woodland, in Yolo county, Cal. Having been refused entry and ordered deported by the Secretary of Labor, a writ of habeas corpus was applied for in his behalf, under which he was by the court below ordered discharged, from which judgment the government brought the case here by appeal.

On the hearing of the matter both in the court below and in this court, the respective parties stipulated that the records of the Immigration Service concerning the case, made a part of the return to the petition for the writ, should be considered by the court in the determination of the cause. It has been attentively examined and considered.

The provision of the Chinese Exclusion Act of November 3, 1893 (28 Stat. 7, 8 (Comp. St. Sec. 4324)), applicable to the case, reads as follows:

'The word 'laborer' or 'laborers,' wherever used in this act, or in the act to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation.

'The term 'merchant,' as employed herein and in the acts of which this is amendatory, shall have the following meaning and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant.'

As to the meaning of the latter clause of the section quoted, this court said, in the case of Ow Yang Dean v. United States, 145 F. 801, 804, 76 C.C.A. 365, 368:

'In the ordinary business of a merchant no manual labor whatever is necessary. The statute contemplates that a Chinese merchant may do manual labor. The restriction is that it shall be such labor as is necessary in the conduct of his business as a merchant. The statute should receive a reasonable construction. If the appellant was permitted to engage in manual labor in connection with his business, we see no reason for holding that the work which he did, as fairly established by the evidence, was not such work as was necessary.'

In the same case was cited our previous decision in the case of Lai Moy v. United States, 66 F. 955, 14 C.C.A. 283, to the effect that a--

'Chinese person, who, during half of his time is engaged in cutting and sewing garments for sale by a firm of which he is a member, is engaged in manual labor not necessary in the conduct of his business, and is not a merchant within the meaning of the statute.'

We have no doubt of the correctness of what was said in those cases. But in the act enacted by Congress February 5, 1917, entitled 'An act to regulate the immigration of aliens to and the residence of aliens in the United States' (39 Stat. 874), Congress concluded its nineteenth section with the express declaration that-- 'In every case where any person is ordered deported from the United States under the provisions of this act, or of any law or treaty, the decision of the Secretary of Labor shall be final. ' Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4jj.

That in any and every case where a party is denied a fair hearing before the officers of the Immigration Service, the courts will protect him by means of the writ of habeas corpus, we entertain no doubt, and it has been many times so adjudged by the federal courts. In the case of Chin Yow v. United States, 208 U.S. 8, 13, 28 Sup.Ct. 201, 203 (52 L.Ed 369) the court expressly held that a...