Hong v. United States

These cases were considered together and are appeals from an order entered in the district court of the United States for the eastern district of New York, affirming an order made by a United States commissioner, directing the deportation of the appellants from the United States to China upon the ground that they were found within this country without certificates of registration, as required by the act of May 5, 1892 [27 Stat. at L. 25, chap. 60, U.S.C.omp. Stat. 1901, p. 1319], as amended November 3, 1893. 28 Stat. at L. 7, chap. 14, U.S.C.omp. Stat. 1901, p. 1322.

The complaint charges that the appellants, being Chinese laborers, not entitled to remain in this country without certificates of registration, did wilfully and knowingly fail to obtain the certificates required by law, and, having unlawfully come within the United States, were found without certificates of registration within the jurisdiction thereof, in the eastern district of the state of New York.

Testimony was heard in the cases, and at the conclusion of the hearings the commissioner made an order finding each of the appellants a Chinese laborer, without a certificate of registration as required by law, and not a merchant doing business within the meaning of the act of 1892, as amended 1893, and not lawfully entitled to remain in this country.

In each of the cases the commissioner, in addition to the judgment just recited, filed a finding, which was made part of the record by order of the district court, as follows:

In the Matter of Lee Kit, Tom Hong, and Tom Dock.

Before B. L. Benedict, U.S. commissioner.

In these three cases it is urged, on one side, that the     decision of the circuit court of appeals of this circuit, in      the case of United States v. Pin Kwan, requires the      commissioner to decide that these three Chinese persons were      not merchants within the meaning of the statute in 1894, and      that, being now laborers without certificate of residence,      they must be deported. On the other side it is urged that the     decision of the court in that case was only that the      merchant's certificate that Pin Kwan had was not the      certificate required by law, and could not be effective to      allow his remaining here, and that the discussion of the      effect and weight of evidence which the court itself had said      it was error to admit (a certificate being the sole proof admissible) goes merely to show what the court thought of the      evidence in that case, which differed from the present one. Admitting the distinction, I do not think the United States     commissioner is at liberty to disregard carefully expressed      language of the circuit court of appeals for the circuit,      even though a dictum of the court as to the precise question      before it. The proofs furnished in this case are sufficient     to show that these three persons were engaged in business      rather than in manual labor in 1894, but not to show a real      interest of each in the business as partners; they do not, to      my mind, clearly establish facts which would bring these      persons within the statute as merchants. It follows that an     order for deportation for each one must be made.

I certify the foregoing to be a true copy of an original     decision made by me in the cases of United States v. Lee Kit,      United States v. Tom Hong, and United States v. Tom Dock,      upon application for orders of deportation of the said Lee      Kit, Tom Hong, and Tom Dock, made on the 18th day of      December, 1902, and remaining on file in my office.

B. Lincoln Benedict,

[L. S.] U.S.C.omm.

Messrs. Terence J. McManus, Frank S. Black, Max J. Kohler, and Russell H. Landale for appellants.

Solicitor General Hoyt for appellee.

Statement by Mr. Justice Day:

Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court: