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85
FEDI!:RAU RE'PORTER.
UNITED STATES v. LAU SUN HO. (l)lstrlct Court/N.D. California. No. 8,500. DEPORTATION OF CHINESE-DECISION OF COLLECTOR OF PORT.
February 2, 1898.)
The action of the, collector of· a port in permitting a Chinese laborer to land, upon representations that he was born here, is not in anj' sense judicial, and, in a proceeding tor the laborer's deportation,does not constitute evell {lriroa facie evidence ot his right to remain in the United States.
This was a proceeding to procure the deportation of Lau Sun Ho, as a Ohinese laborer not entitled to remain in the United States. IT. S;Foote, U. S. Atty. D. Riordan, for defend;lDt. DEHAVEN, District Judge. The affidavit upon which this proceediri'g is based charges that the defendant is now unlawfully within the limits of the United States, and it is further charged therein that the defendant"Reached the said port ot San Francisco, state and Northern district of California, from Hong Kong, China, on the steamship Peru, in the month of December, 1896, and by means of false and fraudulent representations that she was a llative born of the said United States, made to the colleetor of said port, his deputies and officers, having then and there in charge the examination of Chinese persons making application to land at said port, she, the said Lau Sun Ho, · · · was then and there ,and thereby landed on the 20th day of January, 1897, by said collectQr, at said port, whereas, in truth and in law the said Lau Sun Ho · · · was not then and there, or at any time, entitled to land at said port, and be within the limits of the United States, inasmuch as she was not a native born, as 'falsely claimed by her."
The'sufflciency of this affidavit is not to be determined by the strict rules applicable to pleadings, and, giving to it a very liberal construction, affidavit may be construed as charging that the defendant is a Ohinese laborer, and not lawfully entitled to remain in the United States. The special referee to whom the case was referred, with instructions to hear. the testimony and report to the court the facts, and to recommend such judgment as in his opinion ought to be entered, has filed his report, in which he says: "The onIymaterial evidence submitted for my consideration is the order of the collectcr of ot said port, permitting her to land, and the testimony of Mrs. Hull (who understands the Chinese language), of the Methodist Mission, where the defendant has been tor the last seven months, and of Look Gum, ,a female Chinese interpreter there, to the effect that the defendant told them several times, in the Chinese language, since she has been at said mission, that she Was born in China, outside ot Canton, that she had been deceived in coming here" and that she wanted to be returned to her mother, in China; and, further, that she had been taken by them to said mission from a brothel in Ross alley, ,in city.. ;Hlld there been no previous investigation and decision by an offlC(;li.' havingJ'uU jurisc1iction to hear and determine the right of the defendant itO: 'the UniteU 1 should have no hesitation in finding that she was born in China, and a subject of the Chinese empire; for she arrived at said port from China, she speaks only the Chinese language, in dress, features, ana general app.earance she resembles Chinese females, and her own statementi'1 given in evidence are that she was born in China. Upon what evidence the collector decided that the defendant was entitled to enter the United States, and to remain therein, I am not advised; but I must assume, and I have no
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dO,u,bt,that the evidence was. lUUple to warrant his d{lcislon. Suqlideeisl<!u having- been duly made, the of pI'QOl is upon the government to. clearly establish that It was obtained 'by means of false, and fraudulent tions.' I find that the foregoIng evidence is' insufficient to sustain the allegaJ tlons of such false and fraUdulent representations, or to set aside; cancel, or annul the declsl.on of the collector tbat sbels entitled to land" and to be and remain in theUnlted States.. I do tberefore recommend that judgment .be ent.ered therein that she be discharged."
No exceptions have been taken to the findings or recommendation of the special referee. The general practice of the court, in proceedings like this, is to give judgment in favor of the defendant without further inquiry, when such judgment has,been recommended by the referee, and no exceptions are taken to the particular findings of fact which justify such recomm.endation; but it is apparent from the report of the referee in the case now before the court that his recommendation thattbe defendant be discharged is based entirely upon what he cousidel's the legal effect of the action of the collector of the port of San Franciscoin permitting the defendant to land in this country upon her arrival from the Chinese empire. I am unable to concur in the conclusion of law thus reached by the referee. The action of the collector in permitting the defendant to land at the port of San Francisco does not have the same effect as the decision of an officer or special tribunal expressly empowered by law to hear evidence and pass upon questions specially referred to such officer or. tribunal· for final deter· mination, such, for instance, as the decision of the officers of the land departmentin a contest between citizens, or between a citizen and the government arising under the pre-emption, homestead, or other laws providing for the sale and disposition of public lands.. It Js,01 course, well, settled that the. decisions of the officers of the Hind department in such casesare binding upon the parties affected, and can only be set aside for fraud,imposition, or mistake of law. Johnson v, Towsley, 13 Wall. 72; Steel v. Smelting Co.. 106 U. S. 447, Ct. 389. The same rule applies to the action of a board or officer by law with the duty ofapproving or rejecting claims against a county, town, or city. Thus, in Osterhoudt v. Rigney, 98 N. Y. 222, it is said: "The acts of a board of audit, within Its jurisdiction, In the absence of fraud or collusion, are final and conclusive, and cannot be questJoned In a collateral proceeding.. , Whether the claim Is a proper town or county charge, in a case where it:1e doubtful and rests upon disputed evidence, and what amount shaH be all9wed wben not fixed by statute, are questions which the statute commits to the determination of the board of aUdit; and, however much It may err In judgment upon the facts, so long as It keeps within Its jurisdiction, and acts in good faith, Its audit cannot be overhauled, but is final, as well to the tax, payers as to the claimant."
But the action of a collector of customs in permitting a Chinese alien to land in this country is not in any sense judicial, and does not fall within the rule applicable to decisions of special tribunals of the character of those which have been referred to. Tbe law does not give to such order or permission the effect of a judgment that such perSon is entitled to remain in the United States. The only effect of such permission is that the passenger claiming the right so to do is
85'FEDERAL REPORTER.
allowed to land, and if subsequently such alien is arrested, and charged with being unlawfldly withip.,the United States, the order of the collector of custonis, under which such person was permitted to land, IS not even prima facie evidence of his right to remain in the United and the court; in such a proceeding, inquires into the truth of'the'matter, unembarrassed by such order of the collector. In re Li Foon, 80 Fed. 881. See, also, U. S. v. Jung Ah Lung, 124 U. S. 621;SSup. Ct. 663; U; S. v. Chung Shee, 22 C. C. A. 639, 76 Fed. 951. In the present case the evidence clearly shows that the defendant has upon more than one occasion admitted that she was born in China, and her general appearance indicates that she is a Chinese person. Italso appears that she first came to the United State$ on January 20, 1897, and is a laborer. No attempt has been made by the defendant to explain ,or deny that, upon the several occasions testified to by the she made the statement that she was born in China; and there IS nothing whatever in the evidence which tends in the least degree to discredit the truth of such admission, and it must therefore be accepted as true. Judgment will be entered for the deportation of the defendant in accordance with this opinion and the findings this day flied. ' THE THREE FRIENDS. UNITED !'i,TATES v. THE THREE FRIENDS. (CIrcuit Court of Appeals, FIfth Circuit. No. 563. NIlU'l'RAY,'ITY ,LAWB-LIBEL 011' FORFEITURE.
February 15, 1898).'
charged, In one article', that she was '"heavily laden with supplies, rifles, cll,l'trldges, * · * and other munitions of war;' Including one large 12pound Hotchkiss gun." In the follOWing article It was charged that the vesse} was "fitted out IWd armed by beIng heavily laden with supplIes, rIfles, cartrIdges," etc., "with Intent," etc. Held that, while this libel was lackIng in legal precisIon, yet, taken as a whole, It was sufficient as against ob, jectIons first urged on appeal. '
, A libel of forfeiture against a vessel for violating the neutrality laws
Appeal from the District Court of the United States for the Southern District of Florida. This was a libel of forfeiture against the steam vessel Three Friends for alleged violation of the neutrality laws. Exceptions to the libel were sustained in the court below, and the government appealed. . J. Ward Gurley, for the United States. A. W. Cockrell, for appellees. Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge. PARDEE, Circuit Judge. The serious questions presented on this appeal have been disposed of in the decision of the supreme court on another libel against the same vessel (The Three Friends, 166 U.S. 1, 17 Sup. Ct. 495); and ordinarily we would have naught to do in this case but reverse and remand. The appellees, however, con-