21 F. 701 | U.S. Cir. Ct. | 1884
The petitioner is a Chinese laborer and a subject of the emperor of China. He resided in the United States on the seventeenth of November, 1880, a.nd until September 3, 1883. He then went back to China without the certificatehrequired under the restriction act of 1882, which would have enabled him to return to this country. Previous to his departure he applied to the collector of customs at the port of San Francisco for such certificate, and, as he alleges, the provisions of the law for the registration of a description of his occupation, residence, and age, and of the physical marks and peculiarities necessary to his identification were complied with by the collector, and .from him the petitioner received a white tag, which entitled him to the desired certificate. The act of congress appears to contemplate the presence of the collector in person, or by deputy, on board of a vessel cleared or about to sail to a foreign port with Chinese laborers, and his making while on the vessel a list of them, with the particulars mentioned of each one for his identification, such particulars to be entered in proper books to be kept for that purpose. To carry out these provisions on board of the vessel was found to be impracticable. Passengers are not generally expected or even allowed to be on board of a vessel many hours before its departure, and the time consumed in the examination of each laborer, if such examination were had on board, would necessarily greatly limit the number to whom a certificate could be furnished,—a small portion of those who would desire to depart by each vessel of thb line of steamers now plying between this port and China. To obviate the delays which would otherwise arise, the officers of customs at San Francisco have prescribed rules requiring Chinese laborers intending to leave and yet desirous of returning to the United States to attend at the custom-house in advance of the departure of the vessel, and undergo the preparatory examination. That being satisfactory, a white tag is given to the laborer, in exchange for which a certificate is issued to him on board of the steamer. These regulations are designed to facilitate the departure of laborers without unnecessary delay on board of the vessel, and, being reasonable, may properly he insisted upon. The essential requirement of the law is the registry of the par
Tiie petitioner having, as he alleges, secured his white tag, went aboard of the steamer City of Pekin, at San Francisco, when about to depart for China, expecting there to receive in exchange for it a certificate entitling him to return, and was informed that the officer charged to deliver such certificate had already been aboard of the vessel and left. The petitioner accordingly went among bis countrymen on the vessel,’ without further inquiry for the officer, and left without his certificate. In August, 1884, lie returned to the port of San Francisco in the steam-ship City of New York, and sought to land by virtue of his tag, which he presented to the collector. Upon examination of tho records in the collector’s office it appeared that the certificate intended for him had been presented by another person, who had arrived on a previous steamer, and by virtue of it had been allowed to land. The certificate was, upon such landing, canceled. The petitioner was accordingly not allowed by the collector to land, and he now seeks to secure a right to land from the court.
It is by no means clear that the petitioner would not have found the officer having his certificate had proper inquiry been made. His willingness to depart without effort for that purpose tends to create a suspicion as to his conduct. But assuming that there was no purpose to facilitate the use of the certificate by another, whilst he retained the tag, no relief can be afforded him on this application.
The restriction act of May 6, 1882, suspended after 90 days from its passage, and for the period of 10 years from its dale, the right of Chinese laborers to come to tho United States, or, if already come, to remain unless they were within the United States on the seventeenth of November, 1880, or should come before the expiration of 90 days after the passage of the act. For the purpose of identifying tho laborers in the United States on the seventeenth of November, or coming within the 90 days mentioned, and in order to furnish them with proper evidence to depart from and return to the United States, the act provided that a certificate, as already described, after registration of the particulars mentioned, should be issued to the laborer; a-nd the amendatory act of 1884 declares that “said certifícale shall be the only evidence permissible to establish his right of re-entry.” This declaration is as applicable to the certificate issued under the act of 1882, as to that issued under the act of 1884. In the face of its clear and emphatic direction, nothing can be taken as an equivalent or substitute for the certificate. It matters not that the petitioner was entitled to have a certificate from tho collector. If he has not got it, the court cannot help him. That is tho “only evidence permissible,” says the statute, and the court has no power to dispense with its requirement in any case, however great its hardship. The court is itself but the servant of' tho law, and equally bound with
• The writ must therefore be discharged and the petitioner be remanded. If, as -stated by counsel, the vessel on which the petitioner arrived has left the port of San Francisco since his arrival, the marshal can place him on any other vessel of the steam-ship company, when it is about to depart for China, to be deported, and for the expenses attending the charge of the party and his removal the company will be liable. Act of 1884, § 12. The acts of congress, both original and amendatory, contemplate that parties unlawfully bringing here laborers prohibited from landing, shall take them back to the country from which they are brought, or at least beyond the jurisdiction of the United States; and the steam-ship company cannot escape from this duty by the departure of the vessel on which they are brought, or any change in its officers or management.
Writ dismissed and petitioner remanded.
On the argument of this case before myself and the district judge we were both satisfied that the petitioner was not entitled to land on the presentation to the deputy collector of his preliminary white tag, delivered to him at the custom-house as evidence of his right to the proper certificate, accompanied by the explanation given of his failure to produce the certificate required by the act, and the other evidence, satisfactory if admissible, produced of his residence in San Francisco at the date-of the treaty of November 17, 1880; and we were prepared to decide that he must be remanded to the custody of the master of the steam-ship on which he arrived, to be transported to China, whence he came.
We held, in the case of In re Leong Yick Dew, 19 Fed. Rep. 490, that under the act of 1882, in force at the date of his departure, the prescribed certificate is the only evidence upon which a Chinese laborer, to whom the provisions of section 4 are applicable, can be permitted to land. The same ruling was made by the district judge in the case of In re Shong Toon, 21 Fed. Rep. 386. Under the amendatory act of 1884, if that act were applicable, the certificate prescribed in section 4 of the act is in express terms made the only evidence upon which a Chinese laborer, to whom the provisions of that section are applicable, is authorized to be landed. The language is not open' to any other possible construction. Such was the view, generally expressed, taken by us in the ease of In re Ah Quan, 21 Fed. Rep. 182.
The petitioner in this case was, undoubtedly, entitled to his certificate, but he was negligent in not procuring it. It was his own
It has been suggested that the steam-ship has departed, and the question has arisen and been fully argued as to what shall bo done with the petitioner in that case. Section 9 of the act requires the collector of the port, or his deputy, to go on board steam-ships from foreign ports having on board Chinese passengers, examine such passengers, and compare the required certificates produced with his list and with the passengers. And it then provides that “no passom gor shall be allowed to land in the United States from such vessel in violation of law.” They are to remain on the vessel, to be carried away from the country, and the master who should permit, or aid and abet, the unlawful landing of one of such persons would be guilty of the offense created by the statute. In obedience to the determi
It has been suggested that the master might refuse to receive him after his departure and subsequent return to port. So he might refuse to receive him before his departure. But in either event, as the petitioner has been only provisionally in the custody of the law, and not landed in contemplation of law, such refusal would, in my judgment, constitute an aiding and abetting or permitting the landing of a person not lawfully entitled to enter the United States, within the meaning of the provisions of sections 1 and 2 of the restriction act, and both the master so aiding and abetting or permitting the unlawful landing, and the ship under his command, would incur the
In my judgment, the petitioner must he remanded, and in case it shall prove to be impracticable to return him on board the vessel on which lie came, by reason of the departure and probable non-return of the vessel at an early day, that the marshal be directed to return him to China, whence he came, on some other vessel available for the purpose, at the expense of the United States, which expense may he recovered, under section 12, from the parties responsible for bringing him hither.