47 F. 302 -

302

FEDERAL REPORTER,

vol. 47.

de,fendaritdid'J;}.()t so allege. On the contrary, he 'set ,forth that a portion of said timber so cut was used for building, mining, agricultural, and other lawful purposes in the territory of Montana, and that none of it was cut for export, or was exported from said territory. This is not denied. It being admitted that the land was then the defendant had a license to cut said timber for such purposes. It is provided in the statutes of the Vnited States: "That all citizens of the United States and other persons, bona fide residents of the states of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, anthorized and permitted to fell and remove for building, agricultural, mining, or other domestic purposes any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States or territories or districts of which such citizen or person may be at the,time bonafide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the timber and of the undergrowth grOWing upon such lands, and for other purposes: prOVided, the provisions of this act shall not extend to railroad corporations. " This is what'this defendant alleges he did do as to a portion of this lumber, and this is not denied. The new Inatters set up as defenses to the cause of action set forth in plaintiff's complaint were sufficient, if admitted, to defeat the same. As these were not met by any proper denials, they must be considered as true, and the court properly granted the motion for judgment 011 the pleadings. Judgment of the district court affirmed.

In re

LEO HEM

Bow.

(Dtstr'!ct Court, D. Washington, N. D. August 20, 1891.)
1.

DEPORTA TION OF CHINESE.

Act Congo Oct. 1,1888, (25. St. 504.) re-enacts and extends the twelfth section of the original Chinese restriction act, (22 St. 61,) which provides for the removal from the United States of any Chinese person found to be not lawfully entitled to enter or remain in the United States to "the couutry from whence he came." The thirteenth section of. the act of September 13, 1888, (25 St. 479,) is to the same effect. The words "country from whence he came, " as used in the several acts of Congress providing for the deportation of Chinese persons found to be not lawfully entitled to remain in the United States, do not refer exclusively to the empire of China. '

2.

SAME.

3. SAME-REVIEW' ON HABEAS CORPUS.'

.

AI!- order a United States com!?issioner that a Chinaman):le deported to the empre of Chma, based upon a findmg that that is the country from whence he : came, will not be reviewed by the district court; upon a proceeding bya writ of habells cor1'us, where the petitioner alleges no illegality in the decision of the commissioIierother than error in said finding.

4.' SAME. But the petitioner, being cognizant of important facts relating to persons beld to answer for alleged violations of United States Jaws, the 1J0urt, on application of the United States vacated the judgment of the commlSsioner, and

· IN RE LEO HEM BOW.

303

required the petitioner to be held as a witness, and 'ordered that, when discharged as a witness, he be deported to British Columbia, that being shown by the evidenllli to be in fact the country from whence he came.
(SyLlabu8 by the Court.)

Petition of Leo Hero Bow for a writ of habeas cOTue. W. H. White, for petitioner. P. H. Winston, U. S. Atty.
HANFORD, J. From the evidence adduced before me, I find as a matter of fact that the petitioner isa native of the empire of China, and a laborer. For a period of nearly three years preceding his arrest he has been continuously a resident of British Columbia, in which country he was engaged in business on his own account as a barber. Having entered the United States clandestinely,and being a person not lawfully entitled to remain in this country, the law! requires that he shall be removed to the "country from whence he came." What is to be deemed country from whence he came,within the meaning of the exclusiol\. act? To this question exclusively tho arguments of counsel havebeel1 di· rected. There is, however, a question as to the power of. the court in this proceeding to review the decision of the commissioner, who, after an examination, has decided as a fact that the empire of China is the country from whence the petitioner came, and issued a writ in due form for his removal thither. The United States attorney argues that as a matter of law evefy Chinese .labOl'er found to be unlawfully in the United Stutes must he deported to China; in other words, that the act must be construed by l3uhstituting the,words "empire of China" for the words "the country from whence he came." I,hold, however, that such oonstruction .is unwarrant(jd. Manifestly, the law was framed in contemplation of the probability that Chinese laborers would attempt to enter the United States froro the Sandwich Islands, from Canada, Mexico, Australia, and even frow Europe, just as they have in fact been doing" and .it was intended ,to exclude all such, and provide for their deportation, even though by reason of their expatriation any of them should have become entitled to the protection of any other government, and their return to China should be impossible. To give the narrow construction of the law contended for is but to invite all the thousands of Chinese residents of British Columbia to come this way, and travel at the expense of the United States, whenever for pleasure or convenience they wish to revisit their native land. There are many cogent reasons for interpreting this act in a liberal manner, and at least in this particular allowing all the latitude and longitude which the words signify. This is not a new discovery. From the time of the enactment of the first restriction act until very recently, the courts and officers of the government upon whom the duty of enforcing the law has devolved,. have
1 Act Congo Oct. 1, 1888, prohibits any Chinese laborer who had been, or was then, '01' might hereafter be a resident within the United States, and who had departed or might depart therefrom, to return to or remain in the United States, and provides that. if such person return, he shall be removed to the "country from whence he came."

304

FEDERAL REPORTER,

vol. 47.

given effebt to its provisions according to the common and ordinary meaning of the words and phrases in which it is expressed. In this district, while it was under a territorial government, the territorial judges devised the writ now known as a "writ of deportation," and under that form of process the United States marshals, with sanction of the president, attorney general, and state and treasury departments of the United States, returned hundreds of Chinese laborers who had entered from British Columbia back to that country. This being the contemporaneour; interpretation of the law, arid its correctness having passed unchallenged for years, during which the officers have been active in its execution, I am the more inclined to accept it, and rely upon precedent, as well as the reasons which to me appear to support n1Y decision. In this connection it is proper to mention that the present attorney general has been inaccurately quoted in the newspapers as having given an opinion to the effect that the exclusion act, in the light of the appropriations made by congress for its enforcement, requires all Chinese persons not lawfully here to be deported to China. In an official letter to the United States marshal of this district, dated August 12, 1891, Attorney General Miller says: "Yours of August 3d, in which you ask whether you are to understand from the Associated Press dispatches that in my opinion there is no appropriation for the pay of deporting Chinese to the province of British Columbia or Canada, is rl'ceived. I have given no such opinion, and I know of no reason why, if the sentence of the court is deportation to British Columbia or Canada, that sentence should not be executed. " The question at issue being, in my opinion, one of fact rather than a question of law, I must conclude that inasmuch as it has been once decided by a commissioner whose power, under the law, to inquire and decide is as extensive, and in all respects as ample, as that of any judge, this court is not authorized, in a proceeding upon a writ of habeas corpus, to grant the petitioner a new trial, or to correct a mere error of the commissioner in his determination of the case. I will therefore order the petitioner to be remanded to the custody of the marshal. For the purpose of indicating what will be the future action of the court in other proceedings affecting the petitioner, I will now add that in addition to showing continued residence in British Columbia for a considerable time, and the existence of business relations, giving him something more than the character of a transient person or mere sojourner in that country, the petitioner has shown by documents in his possession, issued to him by authority of the dominion government, that he has a valid right, under the laws of that country, to freely return to British Columbia; and it is my opinion that British Columbia is the country from whence this man came, within the meaning of the law under consideration. The petitioner is cognizant of important and material facts connected with one or more cases in which persons have been held to answer at the next term of this court for alleged violations of United States laws; and upon the written application of the United States attorney to have

UNITED STATES ". All TOY.

805

the petitioner held as a witness for the United States, instead of suffering him to be taken beyond the jurisdiction of this court uncIer the writ of deportation issued by the conHlJissioner, I will assume the power t() vacate the judgment of the commissioner, and set a:>ide said writ. The petitioner will be required to enter into a with sureties, in the sum of $500, conditioned for h1S appearance as a W1tness at the next term of this court, and to remain in the custody of the marshal until he can give such security, amI, alter he shall be discharged from attendance as a witness in behalf ot the government, upon application of the United States attorney this court will is:me nt'w prOl:es8 for his removal to British Columbia.

UNITED STATES V.

All Toy.

August 20, 1891.)

(Dtatrict Court, D. Washington, N. D.

DEPORTATION 01' CHINESE LABORERS-UNLAWFUL IMPRISONMENT.

A Chinese laborer having left the United States for a visit to China, and being by Act Cong. Oct. 1, 1888. (25 St. 504,) prohibited from returning, who nevertheless dId return unlawfully via British Columbia, having spent one year as a mere sojourner In that country, and who, upon his arrival in this country, was arrested, and by a United States commissioner sentenced to be depOrted to British Columbia, Bnd who, being without means to pay the f50 head-tax exacted by the laws of Can· ada of persons of his class on entering that country, aud for that reason debarred from returning to British Columbia, the court, on application of the United States attorney, vacated said sentence, and issued a new writ of deportation to China, for the reasons that the commissioner's is impossible of execution, and effective only to detain and imprison the defendant in this countrl' unlawfullr; and China Is. the country from whence he came, within the meaning of the act of congress proViding for the deportation of Chinese perBons found to be not lawfully entitled to remain In the United States. (SyllabU8 by the COUTt.)

At Law.

P. H. Winston, U. S. Atty. W· .H. White, for defendant.
HANFORD, J. Ah Toy, a Chinese person of the laboring class, but aman of a roving nature, alter having spent several 'years in the United States, during which time he lived in California, Florida, New York, Montana, and in this city, returned flS a visitor to his native land, and while there the latest exclusion aet l was passed by congress, whereby he was prevented from again coming to this country lawJlllly. He determined to come, however, notwithstanding the legal obstacles, and in the attempt was captured in this city at the end of a clandestine voyage from Victoria hither. He came from China to Victoria nearly one year ago,
1 Act Congo Oct,. 1, 1888, prohibits any Chinese laborer who had been, or was thon, or might hereafter be a resident within the United States. and who hali departed or might depart therefrom, to return to or remain in the United States, and provided that, if sucb per&on return, he shall be removed to the "country from whence he came."

v.47F.noA-20