17 F.2d 652 | W.D. Wash. | 1927
The pertinent portion of the Act of Congress of September 13, 18S8 (25 Stat. 477), being Comp. St. § 4308, referred to by the chairman, provides :
“ * * * The right to return under the said certificate shall be limited to one year; but it may be extended for an additional period, not to exceed a year, in cases where, by reason of sickness or other cause of disability beyond his control, the holder thereof shall be rendered unable sooner to return, which facts shall be fully reported to and investigated by the consular representative of the United States * * * to the satisfaction of the collector of- customs at the port where such Chinese person shall seek to land in the United States, such certificate to be delivered by said representative to the master of the vessel on which he departs for the United States. * * *»
That the vice consul erred in denying the overtime certificate is concluded by the direction of the Department of State to the consul general in its instructions to direct the issuance of the certificate. The delay in returning was not caused by any intent on the part of the applicant to not return, but because of inability to travel by reason of ulcers, or boils, on his leg. It was the duty of the vice consul, first, to investigate the facts of disability; second, to certify his findings to the satisfaction of the collector of customs at the port of entry, and deliver a copy to the master of the ship. The delay was not the fault of the applicant. The prompt discharge of official duty by the vice consul would have permitted entry within the limitation fixed by statute. The applicant may not be made to suffer because of the error of the vice consul, but be held accountable only for his own contract. Such clearly must be the intent of the statute, and so concluding, it is apparent applicant was denied a fair trial.
The writ will issue.