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

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Tom Hong v. United States

Nor. 310, 311, 313
Argued January 12, 1904
Decided March 21, 1904
193 U.S. 517

APPEALS FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF NEW YORK

Syllabus

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 § 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 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 of United States v. 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 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 of United States v. Lee Kit, United States v. Tom Hong, and United States v. 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.

B. Lincoln Benedict

U.S. Comm.