In re GEE HOP.
(District Court. N. D. californIa.
December 27. 1895J
CHINAMAN-RIGHT TO NATURALIZATION.
A native of China of the Mongolian race Is not entitled to be admitted to cItizenship. A certificate of the naturalization of a Chinaman Is void on Its face.
SAME-EFFEOT OF PASSPORT.
A passport Issued by the department ot state Is not evidence that the person to whom It was Issued was a cItIzen of the United States.
H. S. Foote, U. S. Dist. Atty., and Bert Schlessinger, Asst. U. S. Dist. Atty. , Lyman I. Mowry, for Gee Hop. MORROW, District Judge. A petition for a writ of habeas corpus was filed on behalf of Gee Hop, alleging that he was detained and restrained of his liberty on board the steamship City of Peking by the master thereof; that he has applied to the collector for the port of San Francisco to be permitted to land, but said application has been denied. He therefore prays for a writ of habeas corpus, that he may be restored to his liberty, and allowed to land and enter the United States. The petition and agreed statement of facts show that Gee Hop was naturalized as a citizen of the United States by the court of common pleas in and for the county of Camden, state of New Jersey, on the 8th day of May, 1890; that, thereafter, to wit, on the 12th day of May, 1890, he obtained from the department of state at Washington a passport as a citizen of the United States, and, armed with these documents, he departed from the United States upon a visit to China, and returned to the United States on September 16t 1895; that he demanded of the collector of the port of San Francisco that he be allowed to land from the steamship on which he had returned, and to enter into and remain in the l1nited States, on the ground that he was and is a citizen of the United States; that he presented to said collector his certificate of naturalization, and the passport issued to him by the department of state, as evidence of his right to enter into and remain in the United States, but said collector refused, and still refuses, to permit said Gee Hop to enter or remain in the United States. The district attorney has filed an intervention, denying that Gee Hop has the right to enter this country. The special referee and examiner, to whom the matter was referred to ascertain and report the facts, recommends the remand of Gee Hop, for the reason that there is no law conferring the right of naturalization upon Mongolians or natives of China; that the judgment of the court of common pleas of the state of New Jersey, naturalizing said Gee Hop, is absolutely null and void, for want of jurisdiction; and that, therefore, Gee Hop is not a citizen of the United States, as claimed by him, and cannot be permitted to land in this country.
IN BE GEE HOP.
In this conclusion I entirely agree. The matter of naturalization is exclusively within the control of the government of the United iltates, and not of the states. Article 1, § 8, of the constitution of the United States provides that congress shall have power "to establish an uniform rule of naturalization." By section 2165 of the Revised Statutes, the power of naturalizing aliens is conferred upon the circuit or district courts of the United States, or a district or supreme court of the territorities, or a court of record of any of the states having common-law jurisdiction and a seal and clerk. But, while courts of record of a state, having common·law jurisdiction and a clerk and seal, have the power to naturalize, this, obviously, must be done in conformity with the uniform laws promulgated by the congr.ess of the United States. That congress has never con· templated or intended to confer the right of .naturalization upon Mongolians, or natives of China, is palpable by a mere reference to the laws upon the subject of naturalization. Section 2169 of the Revised Statutes, under the title "Naturalization," reads:
''The provisions of this title shall apply to aliens [being free whIte persons, and to aliens] of AfrIcan natIvity, and to persons of African descent."
Mongolians, or persons belonging to the Chinese race, are not included in this act. This was the view held by Judge Sawyer, sitting on the circuit bench for this circuit (Ninth), in Re Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104, where the subject was very learnedly and elaborately discussed and considered. He says, in summing up his conclusions:
"ThUS, whatever latitudInarian construction might otherwIse have been given to the term 'white person,' it is entirely clear that congress intended, by thIs legIslation, to exclude Mongollans from the right of naturalIzation. I am therefore of the opinion that a native of ChIna, of the Mongollan race, is not a white person, within the meaning of the act of congress."
But if there could be any question as to the meaning of the provision above referred to with reference to Mongolians, the matter is settled and concluded by the imperative and unmistakable language of the act of congress of May 6, 1882, which says:
"Hereafter no state court or court of the United States shall admit Chinese .
That such is the law of the land and the policy of this country is explicitly recognized by article 4 of the convention between the United States of America and the empire of China, which was duly signed and ratified, and, on December 8, 1894, proclaimed by the president. This article provides:
"In pursuance of article 3 of the immigration treaty between the United States and China. signed at Peking on the 17th day of November. 1880 (the 15th day of the tenth month of Kwanghsll, sixth year), it Is hereby understood and agreed that Chinese laborers or Chinese of any other class, either permanently or temporarily residing In the United States, shall have. for the protection of theIr persons and property. all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens. · · ."
It is plain, therefore, that the court of common pleas of the stat(! of New Jersey had no right or power to naturalize said Gee Hop,
and its proceedings and judgment, declaring him a citizen of the United States, are absolutely null and void, for want of jurisdic" tion, and cannot be recognized in this or any other court. Freem. Judgm. § 117. The certificate of naturalization, which the detained presents to this court as evidence of his status as a citizen, is void on its face. There are °no presumptions in favor of a judgment, where the powers of the court are special (Dynes v. Hoover, 20 How. 65), or where the law is such that the court could not, under any circumstances, have jurisdiction (Withers v. Patterson, 27 Tex. 491; Freem. Judgm. § 120; Works, JUl'. pp. 168, 169, § 26). As is tersely stated by the last writer, in his able work, "a void judgment is no judgment." See, also, Murray v. Surety Co.,. 70 Fed: 341, 346, a decision of the circuit court of appeals for this circuit (Ninth), and the cases there cited. The nassport issued by the department of state to Gee Hop, as a citizen of this country, does not avail him in this proceeding, nor give efficacy and validity to the void judgment of the state court of New Jersey. It is, at most, but prima facie evidence of the facts recited, and is not evidence in a court of justice that the person to whom it was given was a citizen of the United States. Urtetiqui v. D'Arcy, 9 Pet. 692. In that case, Mr. Justice Thompson used the following language respecting the legal effect of passports. He said: .
"Upon the general and abstract question whether the passport, pel' se, ·was and competent evidence of the fact of citizenship, we are of opinion that it was not. There is no law of the United States in any manner regulating the issuing of passports, 01' directing upon what e.vidence it may be done, 01' declaring their legal effect. It is understood, as matter of practice, that some evidence of citizenship is required by the secretary of state before issuing a passport. This, however, is entirely discretionary with him. No inquiry is instituted by him to ascertain the fact of citizenship, 01' any proceedings had that wlll in any manner bear the character ota judicial inquiry. It is a document which, from its nature and object, is addressed to foreign powers, purporting only to be a request that the bearer of it may pass safely and freeIJ", and is to be considered rather in the character of a political document, by which the bearer is recognized, in foreign countries, as an American citizen, and which, by usage and law of nations, is received as evidence of the fact. But this is a very different light from that in which it is to be viewed in a court of justice, where the inquiry Is as to the fact of citizenship. It Is a mere ex parte certificate; and if founded upon any evidence produced to the secretary of state, establishing the fact of citizenship, that evidence, if of a chamder admissible in a court of justice, ought to be produced upon the trial, 11S higher and better evidence of the fact."
While it is true that; since this decision was rendered (1835), congress, by the act of May 30, 1866, and reproduced in the Revised Statutes as sections 4075, 4076, 4077, and 4078, has provided for the granting and issuing of passports, yet these provisions do not alter, in the least, the legal effect of passports as stated by Mr. Justice Thompson. Indeed, section 4076 provides:
"No passport shall be granted or Issued to than citizens of the United States."
verified for any other persons
The conclusion is inevitable, therefore, that, under any phase of the question as here presented, Gee Hop is not a citizen of the United
STATES 11. CHUNG SHEE.
States, and the judgment. of the court of common pleas for the county of Camden, state of New Jersey, was and is void. This being so, the detained, not coming within any of the privileged classes who are entitled to return or enter this country, must be remanded. The recommendation of the special referee is hereby, confirmed, and Gee Hop ordered to be remanded.
UNITED S'l'ATES v. CHUNG SHEE. (District Court, S. D. California. December 2, 1895.)
DECISION ON HABEAS CORPUS-CONCLUSIVENESS.
A judgment of a federal court discbarging on babeas corpus a Chinese immigrant from detention on board the vessel and permitting her to iand is conclusive as to her right to come into the country. The decision of a collector denying an alien admission into the country is final uniess reversed on appeal to the secretary of the treasury.
HABEAS CORPUS-RIGHT TO WRIT.
An immigrant held in custody on board a vessel by the master under directions from the customs' authorities is "in custody under or by coior of the authority of the United States," within the meaning of Rev. St. § 753, authorizing the issuance of a writ of habeas corpus in such a case. 'l"he jurisdiction of the federal courts to issue the writ in such a case is not taken away by the Chinese restriction act.
A judgment is not open te;>. cOllateral attack because based on a fraudulent instrument or perjured testimony. .
George J. Denis, U. S; Atty. Marble & Phibbs, for defendant. WELLBORN, District Judge. This is an appeal from an order of deportation made by United States Commissioner Van Dyke. The affidavit on which the warrant of arrest was issued by said commissioner charges that on the 16th of June, 1893, "one Chung Shee (a Chinese woman) did come into the United States from a foreign place, and, having come, has remained within the United States; that the said Chung Shee has been found and now is unlawfully within United States; and that !lot all the times herein mentioned the said Chung Shee was aud is a Chinese laborer," etc. The evidence adduced upon the trial before me establishes the following facts: First. The defendant is a woman, 20 years of age, and a subject of the emperor of China. Second. About June, 1893, the defendant, under the name of Chung Shee, arrived at the port of San Francisco, CaL, on the steamer Peru', from China, and sought admission to the United States on the ground that she was the wife of a Chinese merchant then living in said city of San Francisco, and so testified upon the proceedings below and in this paragraph mentioned. After an examination by the collector at that port, she was refused permission to land. A writ of habeas corpus was subsequently, on July 21, 1893, issued by Judge Morrow.