56 F. 81 | U.S. Circuit Court for the District of Southern New York | 1893
(orally.) The prisoner, who was on May 24, 1898, arrested by the United States marshal, being admittedly a Chinese laborer and found here without the certificate of residence required by the act of May 5, 1892, now offers to prove by a credible white witness that he was a resident of the United States at the time of the passage of the act, but does not proffer any excuse, such as is recognized by the sixth section, for his failure to procure certificate within the time limited. The statute requires the judge before whom such a person is brought to "order that he be deported from the United States” unless he proves,- not only residence here before the passage of the act, but also some sufficient excuse for- the nonproeuring of his certificate. In my opinion the framers of' the act used the conjunctive "and,” instead of the disjunctive -"or,” advisedly and intentionally. The use of the word "so”''at' the ''close of the-sentence is persuasive to this construction. If the supreme court has held,-as it is suggested, that “and”'must be read “or,” to make the act constitutional, such construction' jyóuld j;ivéa., díffótó'nt. aspect' to. thq caáej b,ut ,1 am .shown no, ¡such
The arrest by the marshal was within the authority conferred on that officer by the sixth section, hut, the prisoner having been brought before the tribunal which is to pass upon his case, the question now arises, what is to be done with him? The sixth section says that it shall be the duty of the judge "to order his deportation from the United States as hereinbefore provided.” Examination of the prior sections of the act, however, discloses no provisions for such deportation. The most that X can do, therefore, is to order his deportation whenever provision shall be made for the same by the proper authority, — presumably, by congress, though some other act, to which my attention has not been called, may contain sufficient provision for this, in which case no further legislation would be needed. I find no provision authorizing the United States judge, in such cases, to order the person found without certificate to be imprisoned for an indefinite time, while awaiting deportation, and therefore shall discharge him from immediate custody. This order will presumably be sufficient warrant for' his future removal, when some proper officer appears, charged with the duty, and clothed with the authority, so to remove him.
