108 P. 488 | Ariz. | 1910
The question raised by this appeal is whether the judge of the district court has the right to enlarge on bail pending appeal a Chinaman who has been ordered deported by a United States commissioner as being unlawfully within the United States. It is contended by the appellant that such judge is prohibited from granting bail by the provisions of the act of Congress approved November 3, 1893 (Act Nov. 3, 1893, c. 14, sec. 2, 28 Stat. 8 [U. S. Comp. Stats. 1901, p. 1322]), reading as follows: “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.’® Proceedings under the Chinese Exclusion Acts are not criminal in their nature. Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905. It follows, therefore, that a Chinaman whose deportation is sought by the United States has not the right to demand bail as has a person accused of a crime. The allowance is at most discretionary with the judge. United States v. Fall Chung (D. C.), 132 Fed. 109; In re Ah Tai (D. C.), 125 Fed. 795.
In the case last cited the district court for the district of Massachusetts held that the statute in question did not operate to prevent the'district judge from admitting the Chinaman to bail pending an appeal to him from the order of deportation. The court recognized, the fact that in the deportation of Chinese the proceedings are sui generis; that in many jurisdictions it is the practice to take bail at some stage of the proceedings, both before the commissioner’s hearing and after the appeal to the district judge, and that the taking of bail at some stage of the proceedings is impliedly recognized in the prohibition contained in the clause of the statute in question. The court then proceeded to say, referring to the statute: “But this clause applies only where the order of deportation is final, and it is inapplicable while an appeal from the decision of the commissioner is pending. That an appeal from the judgment of the commissioner is analogous to an appeal from the judgment of an inferior court was said in 22 Op. Atty. Gen. 340. Pending an appeal it is not the duty of the United States marshal to deport the Chinaman with all eon
The order appealed from is affirmed.
LEWIS and DOE, JJ., concur. CAMPBELL, J., dissents.