89 F. 153 | U.S. Circuit Court for the District of Oregon | 1898
A writ of habeas corpus was issued, di- . reeled -to the master of the steamer Braemar, upon a petition which alleged that Gin Fung was a Chinese merchant, doing business it) Portland, Or., and that Thomas J. Black, collector of customs of the United States for the district of Oregon, had arrested him on the charge of being a Chinese laborer unlawfully within the United States, and after a certain hearing had ordered him deported to China, and caused him to he delivered to the master of the steamer Braemar for that purpose. The defendant in the writ made answer to the effect that the petitioner had taken passage on the ship Braemar, from Hong
It is now urged in behalf of the defendant in the writ that the decision of the collector denying permission to land was an adjudication of the petitioner’s right, and is conclusive until reversed on appeal to the secretary of the treasury, and that this court has no jurisdiction to review the decision upon a writ of habeas corpus. If there has been a hearing and a decision, such as is contemplated by the statute, there can be no question that the judgment of the collector is final and conclusive, and can only be reviewed on appeal to the secretary of the treasury. But can it be said that there has been a hearing or a decision? On the 8th day of July, the collector heard the evidence of one witness, a white man, to the effect that the petitioner was a merchant, and, as such, entitled to land. He heard no evidence contradicting this statement. He offered no reasonable opportunity to the petitioner to prove his case, or to produce further testimony. At 4 o’clock of the same day, he directed the master of the steamer to take the petitioner back to China. He permitted in his office the presence of a Chinese inspector, and allowed him to take an active part in the investigation of the right of Chinese passengers to land, so active a part that the impression was produced upon the petitioner’s counsel that the inspector, and not the collector, conducted the examination.' The inspector assumed to decide whether or not further testimony could he heard, and on the morning of ihe 9th, when he knew that the petitioner had already departed for China on the steamer, he intimidated the witness who came to testify that the petitioner was a merchant. This intimidated witness appeared before the commissioner subsequently, and gave evidence of his knowledge that the petitioner was a merchant. Under this state of facts, it cannot be said that ihe right of the petitioner to be and remain in the United States has been inquired into or determined by the collector, or that that officer has rendered a decision. It cannot be presumed that he intended to make a decision which would deprive the petitioner of his right of appeal. The time for appealing does not expire until two days after the decision; yet the petitioner was being hurried away to China on the very day of the pretended hearing. A decision which denies the right of appeal is not the decision which the statute intends shall be final. It is proper for this court, therefore, to- determine whether the petitioner is lawfully deprived of his liberty by the master of the steamer. In re Monaco, 86 Fed. 117; In re Moses, 83 Fed. 995; In re Kornmehl, 87 Fed. 314. Judgment will be rendered ordering the discharge of the petitioner.