Page:Federal Reporter, 1st Series, Volume 2.djvu/634

 IN EE WONG YUNO QUY, 627 �Wong Wai Toon from said cemetery, and sliip them to China. Kefusal having been made on the ground of the non-payment of said fee of $10 required to be paid by said act, the peti- tioner proceeded to disinter and remove said remains without a permit, and was arrested in the act, tried and convicted for the offence created by said statute in the court having juris- diction, and sentenced to pay a fine of $50, or, in default of such payment, to imprisonment in the city and county jail for a period of twenty-five days. Failing to pay the fine, and being imprisoned in pursuance of the judgment, he obtained a writ of Jiabeas corpus; and he now asks to be discharged on the ground that the provision of said act, requiring the pay- ment of said fee/ for a permit, violates the treaty with China, known as the Burlingame treaty, and the constitution of the United States, and is therefore void. AU the other provis- ions of the act having been complied with, the only question is as to the power of the legislature to require the petitioner to take out a permit at a cost of $10 as a condition of disin- terment and removal of the remains of his relative from their place of burial. �The first point made is that the act, in the requirement in question, violates subdivision 3 of § 8, art. 1, of the national constitution, which provides that "congress shall have power to regulate commerce with foreign nations." We are unable to perceive any violation of this provision of the constitution, under the broadest construction claimed by petitioner for the term "commerce," even if it includes the transportation of the remains of aliens to their own country for final sepulture. There is no reference to aliens or to any extra-territorial act of any kind anywhere in the statute, except in the last clause of section 3, which is a wholly independent and different pro- vision from that under consideration, creating an additional offence, and might be wholly omitted without affecting the remainder of the act. It is not neoessary now to consider the question of the validity of that provision. The act deals with matters wholly within the state — within its territory — with the remains of parties who have lived and died within its jurisdiction, and' which have been buried and which still ����