Opinion · Supreme Court of the United States

Tom Hong v. United States

Tom Hong v. United States, 193 U.S. 517 (1904)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1904-04-04
Topic
general

Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court. The- contention of the appellants that their right to remain in the United States is enlarged by the ..treaty with China of *520 December, 1894, considered with § 1 of the act of April 29, 1902, c. 641, 32 Stat. 176, continuing all laws then in force so far as the same are not inconsistent with treaty obligations in its effect upon the acts of 1892, as amended in 1893, is disposed of by the case of Ah How v. United States, decided at this term, ante p. 65. For the first time in the history of legislation, having for its purpose the exclusion of certain Chinese from the country, or their deportation when here ifi violation of the statutes of the United States, and the admission of certain others to the country, or giving the right to remain, Congress, by the act of May, 1892, as amended November 3, 1893, defined those theretofore designated generally as merchants or laborers: “Sec. 2.

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Headnotes

  1. Immigration — Chinese Exclusion — Treaty Supremacy The right of a Chinese person to remain in the United States is not enlarged by the treaty with China of December, 1894, when considered with the act of April 29, 1902, which continued all laws then in force so far as not inconsistent with treaty obligations.
  2. Immigration — Chinese Exclusion — Statutory Definitions of Merchant and Laborer Under the act of May 5, 1892, as amended November 3, 1893, the term "merchant" means only a person engaged in buying and selling merchandise at a fixed place of business, which business is conducted in his name, and who during the time he claims to be a merchant performs no manual labor except such as is necessary in the conduct of that business; the term "laborer" is construed to mean both skilled and unskilled manual laborers.
  3. Immigration — Removal The question whether deportation under the registration acts extends only to persons within the statutory definition of "laborers," upon an affirmative finding of that fact, or instead places on a person claiming mercantile status the burden of affirmatively proving he was a merchant, need not be resolved where the evidence establishes that the persons apprehended were merchants within the meaning of the law.
  4. Immigration — Chinese Exclusion — "Conducted in His Name" Requirement The statutory requirement that a merchant's business be conducted in his name is satisfied where the person has a substantial and real interest, in his own name and right, in a bona fide mercantile partnership at a fixed place of business, even though the business is carried on under a company name that does not include the individual partner's name, as is usual among the Chinese; the purpose of the requirement is to prevent those with no real interest in the business from making fraudulent claims.
  5. Immigration — Chinese Exclusion — Appellate Review of Findings Findings of a commissioner and the district court in Chinese deportation cases will ordinarily be followed on appeal and reconsidered only when it is clear that an incorrect conclusion has been reached. Chin Bak Kan v. United States, 186 U.S. 193, 201
  6. Immigration — Chinese Exclusion — Evidentiary Allowances for Government Delay Where the government permits many years to elapse before commencing a prosecution, reasonable allowance may be made for the natural loss of documentary evidence, such as the firm's books of account and articles of partnership, occasioned by that delay.
TOM HONGv. UNITED STATES,193 U.S. 517(1904)
24 S.Ct. 517
TOM HONG,aliasHOM POE,v. UNITED STATES.
TOM DOCK,aliasHOM DOCK,v. UNITED STATES.
LEE KITv. UNITED STATES.
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF NEW YORK.
Nos. 310, 311, 313.
Argued January 12, 1904.
Decided March 21, 1904.
Chinese persons who were in this country prior to May 5, 1892, and who from 1891 to 1894, carried on a mercantile business under a corporate title, although the business was not conducted in their individual names, and who had books of account and articles of partnership, were merchants within the meaning of section 6 of the act of May 5, 1892, as amended by the act of November 3, 1893, and were not required to register under the terms of that act, and cannot be deported for failing so to do, when found without registration certificates. When the Government allows many years to elapse before commencing prosecutions, allowances may be made which will excuse the failure to procure the books of accounts and articles of partnership.
THESE cases were considered together and are appeals from an
order entered in the District Court of the United States for the
Eastern District of New York, affirming an order
Page 518
made by a United States commissioner, directing the deportation
of the appellants from the United States to China upon the ground
that they were found within this country without certificates of
registration, as required by the act of May 5, 1892, as amended
November 3, 1893. 1 Comp. Stat. 1901, 1322.
The complaint charges that the appellants, being Chinese
laborers, not entitled to remain in this country without
certificates of registration, did willfully and knowingly fail to
obtain the certificates required by law, and, having unlawfully
come within the United States, were found without certificates of
registration within the jurisdiction thereof, in the Eastern
District of the State of New York.
Testimony was heard in the cases, and at the conclusion of the
hearings the commissioner made an order finding each of the
appellants a Chinese laborer, without a certificate of
registration as required by law, and not a merchant doing
business within the meaning of the act of 1892 as amended 1893,
and not lawfully entitled to remain in this country.
In each of the cases the commissioner, in addition to the
judgment just recited, filed a finding, which was made part of
the record by order of the District Court, as follows:
"In the matter of Lee Kit, Tom Hong and Tom Dock.
"Before B.L. Benedict, U.S. Commissioner.
"In these three cases it is urged on one side that the
decision of the Circuit Court of Appeals of this circuit, in the
case ofUnited Statesv.Pin Kwan, requires the commissioner
to decide that these three Chinese persons were not merchants
within the meaning of the statute in 1894, and that being now
laborers without certificate of residence they must be deported.
On the other side it is urged that the decision of the court in
that case was only that the merchant's certificate that Pin Kwan
had was not the certificate required by law, and could not be
effective to allow his remaining here, and that the discussion of
the effect and weight of evidence which the court itself had said
it was error to admit (a certificate being the sole proof
Page 519
admissible) goes merely to show what the court thought of the
evidence in that case which differed from the present one.
Admitting the distinction I do not think the United States
commissioner is at liberty to disregard carefully expressed
language of the Circuit Court of Appeals for the circuit, even
though a dictum of the court as to the precise question before
it. The proofs furnished in this case are sufficient to show that
these three persons were engaged in business rather than in
manual labor in 1894, but not to show a real interest of each in
the business as partners; they do not to my mind clearly
establish facts which would bring these persons within the
statute as merchants. It follows that an order for deportation
for each one must be made.
"I certify the foregoing to be a true copy of an original
decision made by me in the cases ofThe United Statesv.Lee
Kit, The United Statesv.Tom HongandThe United Statesv.
Tom Dock, upon application for orders of deportation of the
said Lee Kit, Tom Hong and Tom Dock, made on the 18th day of
December, 1902, and remaining on file in my office.
[L.S.] "B. LINCOLN BENEDICT,
"U.S. Comm."
Mr. Terence J. McManus, with whomMr. Frank S. BlackandMr. Russell H. Landalewere on the brief, for appellants.Mr.Max J. Kohler, by leave of the court, filed a brief in aid of appellants on behalf of the Chinese Charitable and Benevolent Association of New York.Mr. Solicitor General Hoytfor the United States.1
MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.
The contention of the appellants that their right to remain in the United States is enlarged by the treaty with China ofPage 520December, 1894, considered with § 1 of the act of April 29, 1902, c. 641,32 Stat. 176, continuing all laws then in force so far as the same are not inconsistent with treaty obligations in its effect upon the acts of 1892, as amended in 1893, is disposed of by the case ofAh Howv.United States, decided at this term,antep. 65.

For the first time in the history of legislation, having for its purpose the exclusion of certain Chinese from the country, or their deportation when here in violation of the statutes of the United States, and the admission of certain others to the country, or giving the right to remain, Congress, by the act of May, 1892, as amended November 3, 1893, defined those theretofore designated generally as merchants or laborers:

"SEC. 2. The words `laborer' or `laborers,' wherever used in this act, or in the act to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation.

"The term `merchant,' as employed herein and in the acts of which this is amendatory, shall have the following meaning and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant."

It is contended by the appellants that as by section six of the act as amended November 3, 1893, it is made the duty of certain Chinese laborers within the limits of the United States to apply to the collector of their respective districts within six months after the passage of the act for a certificate of registration, and in default of compliance with the terms of the act, to be subject to arrest and deportation, unless, for certain reasons given in the statute excusing them, they have beenPage 521unable to procure the certificate required by law; and as section two of the same act specifically defines what is meant by a "laborer," that only such as come within the statutory provision as "laborers" are liable to deportation upon an affirmative finding of this fact as to the person apprehended.

On the part of the Government, it is contended that when a Chinese laborer is apprehended under this act and found without a certificate, and claiming to have been a merchant during the period of registration, he is subject to deportation unless it is affirmatively shown to the satisfaction of the commissioner or court that he was a merchant, as defined by the statute, during such period of registration.

We do not find it necessary to determine this question in the cases now before us, for in the opinion of the court the testimony shows that the appellants were "merchants" within the definition laid down by the law. The testimony shows, without contradiction and by disinterested witnesses other than Chinese, that the appellants had been in this country for periods varying from ten to thirty years. That in the years from 1891 to 1895 they were carrying on a Chinese grocery in New York, known as the Kwong Yen Ti Company. In that period they bought and sold groceries, kept books of account and had articles of partnership. It is a fact that the testimony does not disclose, as to any of them, that the business was conducted in his name, as the literal interpretation of the law would seem to require, but it was carried on in a company name, which did not include that of any of the partners. The fact of buying and selling at a fixed place of business in a real partnership was established without contradiction.

It is true that after the lapse of so many years the appellants, when taken before the commissioner, were unable to produce the books or articles of copartnership of the firm. But some allowance must be made for the long delay in their prosecution by the Government, and the natural loss of such testimony years after the firm's transactions were closed.Page 522

The commissioner was doubtless influenced by the intimation in thePin Kwan Case, 100 F. 609, to the effect that the statutory requirements as to the conduct of the business in the name of the parties necessitated the appearance of the name in the style in which the business was conducted. But this would be too narrow a construction of the statute. The purpose of the law is to prevent those who have no real interest in the business from making fraudulent claims to the benefits of the act as merchants. The interest in the business must be substantial and real and in the name of the person claiming to own it, but the partner's name need not necessarily appear in the firm style when carried on, as is usual among the Chinese, under a company name, which does not include individual names. The main purpose is to require the person to be abona fidemerchant, having in his own name and right an interest in a real mercantile business, in which he does only the manual labor necessary to the conduct thereof. This conclusion has been reached in a number of Federal cases, in which the matter has been given careful consideration. Perhaps the leading one was decided by the Circuit Court of Appeals for the Ninth Circuit,Lee Kanv.United States, 62 F. 914, the opinion being delivered by Mr. Justice McKenna, then circuit judge, in which the subject was so fully considered as to leave little to be added to the discussion. See alsoWong Ah Gahv.United States, 94 F. 831;WongFongv.United States, 77 F. 168.

It is true that the findings of the commissioner and in the District Court in cases of this character should ordinarily be followed in this court, and will only be reconsidered when it is clear that an incorrect conclusion has been reached.Chin BakKanv.United States,186 U.S. 193,201. But in the present case no new matter seems to have been admitted in the District Court, and the finding made by the commissioner as to these appellants is of an uncertain nature when the judgment is read in connection with the special finding filed by that officer and made part of the record in each case, in whichPage 523he says: "The proofs furnished in this case are sufficient to show that these three persons were engaged in business rather than in manual labor in 1894."

In this state of the record an examination thereof satisfies us that the appellants adduced testimony which established that they werebona fide"merchants" within the meaning of the law at the time registration was required of laborers by the act of Congress, and as the orders of deportation were made on the sole ground that appellants failed to show that fact theJudgments are reversed and appellants discharged.
  1. Page 519 These cases were argued simultaneously with, on the same briefs, and by the same counsel asAh Howv.United States, reportedante, p. 65. See that case for abstracts of arguments. ↩