ices, and, which is shown to be a reasonable charge for the work performed. A similar charge has been allowed by the pr.esent comptroller. and I think rightly so. I can see no reason for requiring the 'deputyclerk to perform this service for nothing. The court was not in sessi<lD. and he drew no per diem while performing the service. ErwiJnv. .· 37 Fed. Rep, 470. . The clerk is entitled to his mileage for attending court at Texa:rkaha. Section 828, Rev. S t . ' '. . , The fee for entering order appointing attorney to defend a poorprisoner is chargeable to the United States. Attachment against a witness for contempt of court, in not obeying a subprena, is a criminal proceeding. in which the United States is plaintift, and the costs of the proceeding, including a docket fee. is chargeable to the United States. E,'win v. U. S., 37 Fed. Rep.. 470. A clerk, who is also a commissioner, may charge a per diem for his attendance on court, and a per diem for hearing a cause as commissioner on the same day. Erwin v. U. S·., 8upra. In the settlement of plaintiff's Rccounts for the year 1887, the comptroller trans/erred from the district court account to the circuit court sc-· count' the· SUlp of $535 in fees, which were earned in the dib1.rict court. The result of this was to raise the clerk's account in the circuit court beyond th.e linlit allowed bylaw, and it was done for that purpose. For the expense acsame purpose the comptroller ,deducted from the count in the circuit court the sum of.$156. thus bringing the plaintiff in debt to the United States on his circuit court account in the sum:Qf.. $645. 20. By this method of stating the account, the plaintiffw8s wfQngfully deprived of $535 on his district court ilccounts, after satisfying . aU excess ofemQlmnent earned in the circuit .court. That this could nQt: be rightfully done has been decided. Goodrich v. U. S·· 35 Fed. lWp. 193; Butlfrv. U. S., 23 Ct. Cl. 162. Applying these principles to the accounts sued on, I find there is due fro\ll the United States the sum of $788.15.
SILYERJ4AN !t. FISCUS,
(District court, W. D. Pennsyl'lJanfa. :May 81, 1890.)
IlI'TOXICATING L1QUORB-INTERBTATE COMlIIERCE:'-:ORIGINAL PACKAGEB-CoMMIT;i.niN,T m DEFAULT OF BAII..-HABllASCORPUB,' . ,
Upon the return of a writ of hnbens corpus, it appeared that under a cri!Il.inal proceedillg against tbe prisoner for a violation of a local statute prohibiting the ' sale of malt or brewed liquors, etc., in the borough of Leechburg, in Armstrong oounty, PlI" and also for a violation of .tbegeperal license law of said state, .re--,' straining and re!l"t1lating the sale of vinous, spirituous, malt. Or brewed liquors, be. .was oommitted,.ln defaultef bail, to the jail of said county for trIaL The prisoner lllieged, ar,ut 111. the hearing on the hllbeuscnrpull undertookto show, tbat thllJiq,.· uurs for tl'ul,S'ale of Which be bad been arrested and committed had been hnportllli by a brewing ,company of' the. state of Ohio bom. that state into the that he, as the agept of said co.m,pl'wy, had sold lIame in tlle,qrig.:
il1al'and,unl>rokeil packages; and he claimed his discharge under the deCisions the'llupreme court in Lei$l1 v. Hnrdin, 10 Sup. Ct. Rep. 681, and Lyng v. Peopte, 'It wall not alleged that the prisoner was unable to give bail, nor was any special reason shown why a court .of the United States should interfere with the judicial proceeding in advance of the trial in tbe state court. Held., that it was Dc>t to be doubted that the state' court would recognize the binding force of the said decisions of the supreme court, and golve the prisoner the benefit of them; and, fol, lowing the practice sanctioned by the supreme court in Ex parte Royall, 117 U. S. 241,6 Sup. Ct. Rep. 734, and acted upon by that tribunal itself in Ex pnrte RoyaU, J;J. S.2:>1, 6. Sup. Ct. Rep. 742, the court. refused to discharge the prisoner iu advance of hIS trIal, and remanded him to the custody of tbe authorities of the state, w\thout prejudice to bis rigoht to renew hill application thereafter, should the circum,tances render it proper for him to do so.
!It;f,beas, Cpr,pus. , ,.; Jo/vri' F. Whitworth and Ohnrles 8. Fettelwtnn, for relator· .,J..:B.· Neale and M. F. Leason, for. the Comm.onwealth. .T.
The petition of Charles Silverman for a writ of habeas. the jurisdictional facts and probable cause, the court, undel' the authority of sections 751, 753',,'and 754 of the Revised Statutes issued stlchwrit,directed to the sheriff of Armstrong. county, Pa., commanding him to produce the prisoner in this court, that· the cause of his detention might be inquired into. The sheriff has' macl'e his return to the writ, and the case has been heard, and is 11OWto be disposed of. It appears that a criminal proceeding waS insiitutecl:against the prisoner beforeJ. B. Kifer, Esq., a justice of the peace of Armstrori.g county, Pa., for a violation of a local state statute, approved March 27,1866, prohibiting the sale of malt or 'brewed liquors, etc., in the borough of Leechburg, in said county; and for a violatio I, also, of the general license law of the state, approved May 13, 1887, to restrain and regulate the sale of vinoull,spirituous, malt, or brewed liquors; and under said proceeding the prisoner, in default of bail, was committed by the justice to the jail of said county of Armstrong. The petitiol1er avers, and has undertaken to show the court, that at the time of the commission of the alleged offense for which he iaheld he was the agent at Leechburg, Pa., for the Cincinnati Brewing Company, of Hamilton, in the state of Ohio, and that said company consigned from said place in Ohio to themselves at Leechburg, Armstrong county, Pa., to his care aotheir agent, a quantity of beer in stamped original packages, which he tlhis received at Leechburg,and, as the agent ofsaid company, sold, as the goods of said company, in said stamped original packages, in the same condition as received by him from the said company, unopened, uIl,altered, unchanged, and with the stamps unbroken, and that He \vas not interested in said liquor otherwise than as agent of said com\ pany. , J " , The prisoner claims his discharge upon the ground that under the recent decisions of the supreme court of the United States in Leisy v. Ha-rdin,'10 Sllp,'Ct. Rep. 681, and Lyng v. People, ld. 725, popularly known ad th&"0riginal Package Cases," he had the lawful right to make such ..8,n'd that for so doing he is not amenable to the criminal laws of the, state I)fPennsylvania, for the alleged violation of whichhehaabeen
,:t1Nrl':li:D STATES V. FISCUS.
arrested and is under commitment. Undou,btedly, the courts of the United States ha ve jurisdiction on habea8 corpus to diE'charge from custody a person who is restrained of liberty in violation of the constitution 01 a law of the United States, although he may be held tinder state process for an alleged offense against the laws of such state. This was distinctly held by the supremecpurt in Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. Rep. 740. But it was, further held in that case that the courts of the United have II: discretion whether they will discharge the prisoner in advance of his trial in the state court; and Mr. Justice HARLAN, ing for the court, says: "That discretion should be exercised in the light of the relations existing, under our system of government, the judicial tribunals of the, Union and of the states, and in recognition of the fact that the pUblic goo'd requires that those relations be not disturbed by unnecessary confiiot between courts eq ually bound to guard and protect rights secured by the constitution." The,decisionci:ted,wasmadeupon a writ of error totlle citcuit of thy: United, State8,£or the eastern districtofVirginialbutupoh ani: original application to the supreme court for a writ ofhabea8 C01pUS, in)! oft the trial of the '. prisoner in the state court,. the writ was denied .. Exparw.Royall, 117 U. S. 254, 6 Sup. Ct. Rep. 742. Now, the', question of the constitutionality of the laws of Pennsylvania here in question"as they affect interstate commerce, can be raised by the pris-" oner (Silv,erman) upon his trial in the state court, and his defense there made; and it is not to be doubted that that court will recognize the bind- : iug forceupo,n all judicial. tribunals, federal and state, of the decisions of the supreme court of the United States in the cases of Leisy v. Hardin and. Lyng v. People, supra, and give to him the full benefit of those de· , cisions. It is not alleged that Silverman is unable to bail, and no special rea:sonis shown why this court should interfere at this stage Of the case with the judicial proceedings in Armstrong county; anrl follow·. ing the practice sanctioned and acted upon by the supreme court in the' cases of Ex parte Royall, supra, as the better practice, 1 must refuse to discharge the prisoner, and remand him to the custody of the sheriff of Armstrong ,county, but without prejudice to his right to renew his ap-plication to this court, or to make.application to the circuit court, at s\J1l1e future time, should the circumstaneesrender it proper to dOBO; , and it ia so ordered.
!nr6 :Cllu,a, Toy Ho ANP WONG CROY SIN.
r(Oir;euit; OOUrt, D·.
. 'The wife and child ren 'of a Chinese who is entitled, under' article 2 of the tTeaty of 1880; and; .section 6 of the act of'l884. to come withm and dwell in the 'United States) entitled.to come into t,he cpuntry with him or after. him, as such .wife and chilaren, without the certificate prescribed in said fleotion 6.
" i petitioners·.. ,Mr,· .MranklinP· .M'ayo,Jol the UnitedStates.
the', wifinmd child of Wong Ham, a well-known Chinese merchant, resident·il\,Portland,Ot., forsorne years past· .4.' sberttime since, he visited China, and returned here on the Americam'bark1Coloma, bringing with him the petitioners, who had never been in the United StIl.tes. ,He, (Wong Ham.) being provided with the certificate Tequired by section 6 of the act of July 5, 1884, (238t.116,) to landj but, the petitioners having no such certificate, their right to land was denied by the collector. Tliejnthen sued outw.rits of habeosoo1jJus, directed to the master of theCol<'lm'fl., who made return admittingllhe facts stated in the petition and the:dlltelltion,andstatingthe ca.use, ·thereof to be the refusal of the colledtor W:allow the petitioners The ,district attort:wy !Was alJowed ttrintervene on behalf of the United on the facts stated in the respective petitlOI18.'J;
J. 'Thesetwocases were heard together·. The petitioners are
..The,action olthe cbllector in refusing to allow the petitioners to land wasbise(1;:on. a decision of the, treasury department of August 19, 1889, (Tfeasuty<'J)ecisions,409,) in which 'it was said that the wife of a Chinese'mereballtwho hal;! :neverbe.en ,in the United States cannot. be allowed :toenteJ; the United States, with;or:without her husband, otherwise than upon the prod uction of the certificate required by section 6' of the' act of J'Qly 1884. By the treaty with China of November 17, 1880, (22 St. 13, art. 2,) it is provided, that"Chinese sUbjects, whether procPt'ding to the Unitt'd States as teachers, students, merchants. or from curiosi'y, together with their body Hlld hOllsehold sprvants, and Chinese laborers who are now in the United States, shall be Hllowed to go Hnd come of their own free will and accord, and shall be accorded all the rights, privileges. immunities, lind exemptions which are aecorded to the citizens and sUbjects of the most fa vored naLion."
By section 6 of the act of July 5,1884, (23 St. 116,) professedly passed to execute" the stipulations of this treaty, a certain certificate is required
'fQrtM admission into the United States of "every Chinese person," other than a laborer, who may be entitled. by said treaty to such admission. Then eama the act 'ofOctober 1, 1888, (25 St.504,)by which the coming or return of Chinese lahorers'to the United States is absolut:ely :fori, '
THe m.anifestpurpose of this legislation is to exclude. Chinese. ,laborers from coming or returning to the United States. The other cla.'lses"teadl1er, student, and merchant"-,.,.are not required to have certificates before·theycan beadmitted'into tbecoulltry, becamie theiradniission is intended to be restrained or limited, but to prevent laborers froni being admitted under the guise or in the character of such classes. There is nolimitationonihe right of these classes dwelLin'the United States; The statute only requires that such a person .shall furni$ the prescribed evidence that he belongs to one of these favored classes, when he may come and go at pleasure. IDhaadmission of the petitioners is:Mt within the mischiefthatthe exthe child .,ellision, a.etwas intended taremedy-. "They are both ,'being: itbout eight years of age. It is Common knowledge that Chinese women arenot laborers. The station in life of the petitioners, beingtbe .'wife child of a merchant, also shows they do n'ot belong to the }dbor. :ingclass., : :; 'Tbepetiiioners are not within the purview of tbeexclusionact of 1888', wl>riehis -confined to laborers. Do they come within that of sec, tion6 of the act of 1884; 'which requires "every Chinese person'" (lther reguired :·than li-Jaborer to procure from his own gO\7ernment the by said:'section before he Can be admitted into the UuitedStates? . (J()nfessooly the petitioners -are "ChineSe persons,'1 and are therefore \,within: the letter of the statute. But in my judgment they are not the "persons" contemplated by congress in the passage of the act. "Ohinese 'women:are not teachera, students, 01" merchants; and thereI fore th-ey:clinnot, Rssuch, obtain tbecettificate necessary to show they ; belong ta the favored class. But, as the'wives and 'children of "teachers, 'JltudentE1;und merchants," they do in fact belong to snch class; aodthe proofof'such relation with n persdn:of thisclasS"1 entitled to admissibn, ::' ,,';, . is plenary evidence ofsuch fact. , , It not to be or without cogent. reason, concluded ;that "oongress,'in the'passage of the act of "toe:ll:cu'te the ' treaty of 1880, really mtl'lnded to limit·or restraill its :operatiori' in: tbis respect. The treaty (article 2) declares that a Chinese merchant may bring his "body and household servants" with him into the country, and they "shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation." It is impossible to believe that parties to this treaty, which permits the servants of a merchant to enter the country with him, ever contemplated the exclusion of his wife and children. And the reason why they are not expressly mentioned, as entitled to such admission, is found in the fact that the domicile of the wife and children is that of the husband and
'riather,,'snd that the concession to the merchant of the right to enter the United States, and dwell therein at pleasure, fairly ,construed, does include his lvifeand minor children; particularly when it is remembered that such concession is accompanied ,with a declaration to the effect that, in such entry and sojourn in the country, he shall be entitled to all the rights and pri\lileges of. a subject of Great Britain or a citizen of France. There is nothing in the act of 1884 that indicates an intention on the part of congreSs to restrain the privileges conceded to Chinese merchants, by :thisarticle':of the treaty. It only adds a rule or measure of evidence by which the, fact of being such merchants may be conclusivelyestablished. ,. InrlU Tung Yeong, 9'Sawy. 620,19 Fed. Rep. 184, Judge HOFFMAN held that the minor children of Chinese merchants were entitled to admission into the country; either, with the father or on being sent for by him, on the ground, that they were not laborers, and said: '. "Ibwas not without satiSfaction that I found there was no requirement of tbelaw: which would me to deny to a parent the custody of his child, and to se,nd the latterback,across t/1e ocean to the country, from which he came)' , It wasJIll,\deiuFl'lbruary, 1884, while the actrequiring the production of a certificate from" every Chinese person" seekthe JJnited,States w&s'notpassed until July 5, 1884, and it is not au tlwrity" on, the question of whether th.e words" every , ,Ohinese person, "insootiop 60f the,llct, are limited to teachers, students, Dlerchants, anq dQ,not include their wives and children. But it is in favoljQftl)e conclusion that the children ofa Chinese Qfthe treaty of 1880, are entitled to admission , jnto·tjhe XJnited father or after hillJi and, if a child, why not his wife? ' Myqonclusion is tha,t \lndet: the treaty and statute, taken together, a ., who is entitled to come into and dwell in the United States is to bring with him, and have with him, his wife anq children. ,The company ,oithe one, and the care and custody oithe bis ,by natural right; and be ought not to be deprived of either, unless the intention of congress to do so. is clear and unmistak,: able. , , The petitioners are restrained of their liberty. and are entitled to be discharged frOIll,Qustody; and it is so ordered.
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