108 P. 490 | Ariz. | 1910
Three questions are raised by the assignments of error; the first being whether the judge had the power to refer the case and to render judgment upon the evidence contained in the commissioner’s report. Because a reference to take testimony and report is unauthorized in cases where trial by jury is a matter of right, it does not follow that the reference may be made when such right does not exist. In the absence of statutory authority therefor, the classes of cases which may be referred are well defined, and include none analogous to this. Our attention has been called to but one decision directly in point. In United States v. Lee Lip (D. C.), 100 Fed. 842, this question was directly involved, and Mr. District Judge Coxesaid concerning it: “Unless my attention is called to some authority which I have not yet seen, I shall hold: (1) That the statute directing that Chinese persons shall be brought before the United States commissioners clothes those officers with jurisdiction. (2) So far as I have been able to observe, there is not, from the beginning to the end of legislation on Chinese immigration, a single word which authorizes a judge of the United States courts to refer these cases to the commissioners as referees. ” In a case where a Chinaman was ordered deported by a United States commissioner, and appealed to the district judge, who determined the appeal upon a transcript of the proceedings before the commissioner, the United States supreme court, in determining the ease upon a writ of error, says: “In this case the Chinaman did prosecute his appeal from the commissioner to the district judge. The statute is curiously silent as to how the appeal is to be heard; it says nothing as to what papers are to be filed, or as to what testimony shall be given. Tn our view, in giving the Chinaman an appeal, the law con
The remaining question raised touches the right of appellant to bail pending this appeal. The act of Congress provides that when an order of deportation has been made by a United States district judge or commissioner: ‘ ‘ Such order of deportation shall be executed by the United States marshal of the district within which such order is made, and he shall execute the same with all convenient dispatch; and pending the execution of such order such Chinese person shall remain in the custody of the United States marshal, and shall not be admitted to bail.” "While the allowance of bail pending appeal is within the inherent power of the courts of general jurisdiction, the statute in question has been held to prohibit its exercise, upon the theory that the order of deportation is final; its execution merely being suspended and the order becoming effective in event of the appeal being unsuccessful. See United States v. Wong Lee Foo, ante, p. 252, 108 Pac. 488, and authorities therein cited. In that case we held that upon appeal from a commissioner’s order of deportation the hearing before a district judge must be de novo, and for that reason the order of the commissioner became vacated by the
It follows that bail was properly denied; but, as we are of the opinion that the district judge erred in his mandatory reference for the purpose of taking testimony, and basing his order of deportation upon the evidence contained in the report, the order appealed from is reversed.
KENT, C. J., and DOAN and LEWIS, JJ., concur.
