United States v. Chung Ki Foon , 83 F. 143 ( 1897 )

DE HA VEN, District Judge.

This is a proceeding brought by the United States for the deportation a construe the agreed statement of facts, the defendant was born in, and is a subject of, the empire of China. He arrived at the city of Port-laud, Or., in 1876, and engaged in the general merchandise business, in which he continued until some time in the year 185)2, when lie came to Ban Francisco, and, after remaining in that city for three months, went to Bakersfield, Cal., and opened a restaurant and lodging house as the proprietor thereof. The date when he commenced to conduct the business of restaurant: and lodging-house keeper does not appear, but, from whatever date, be continued.in such business until November, 185)2, when be was arrested upon a charge of having committed the crime of robbery, and confined in the county jail of Kern county. He remained in this jail until January 25,1894, and then, having been convicted of the crime with which lie was charged, he was placed in the state prison at San Quentin, and served therein under such judgment: of conviction for the term of five years. Tlie defendant is without tlie certificate of residence required of Chinese laborers by section 6 of the act of congress of May 5, 1892 (27 Stat. 25); and the act amendatory thereof, dated November 3, 1893 (28 Stat. 7, § 1). Upon these facts, United States Commissioner Heaeock, to whom the matter was referred, found that the defendant was not lawfully entitled to remain in the United States, and recommended bis deportation to China. The defendant has filed exceptions to the report of the commissioner, and contends that upon the foregoing facts a judgment for his deportation from the United States would not be warranted by law. In passing upon the question thus presented, I do not deem it necessary to determine whether defendant was a merchant on May 5,1892, as it clearly appears from the agreed statement of facts that he had ceased to be a merchant before Ms arrival in California, in 1892, and thereafter was the keeper of a restaurant and lodging-house proprietor until his subsequent arrest and confinement in jail, in November, 1892. By the terms of the act of November 3, 1893, amending section 6 of the act of May 5, 1892, it was made the duty of all Chinese laborers entitled to remain in the United States, before the passage of the’ act thus amended, to apply to the collector of internal revenue of their respective districts, within six months thereafter, for a certificate of residence; and if, at the date of the passage of such amendatory act of November 3, 1893, the defendant was a laborer, within the contemplation of that act, it was his duty to provide himself with the certificate therein required; and, if he has not done so, nor shown that his failure so to do was occasioned by accident, sickness, or unavoidable cause, within the meaning of the law, he is not entitled to remain in.the United States.

This brings me to the consideration of the question whether the defendant was, at the date of its passage, a laborer, within the meaning of the act of November 3,1893. Upon that date he was, as above stated, in jail, awaiting his trial upon a criminal charge, and had been so confined for ab'out one year; but at the time of his arrest his ostensible occupation was that of keeping a restaurant and lodging house. It was held, and I think correctly, in the case of In re Ah Yow, 59 Fed. 561, that a restaurant keeper is to be classed as a laborer under a proper construction of the act of congress under consideration, arid I do not think that defendant’s status as a laborer was changed by the fact of his arrest, and subsequently enforced idleness in the county jail. A person may be properly referred to as a laborer, or as belonging to the laboring class, although at the particular time to which such reference is made he may, by reason of inability to obtain work, sickness, or other cause, not be actually employed as a laborer; and, in my opinion, the words “Chinese laborers,” as used in section Í of the act of November 3, 1893 (28 Stat. 7), refer not only to those actually engaged in manual labor at the' date of the passage of that act, but were intended to include all Chinese persons dependent upon their manual labor as a means of securing an honest livelihood and self-support,'and those who are not “officers, teachers, students, merchants, or travelers for curiosity,” within the meaning of the treaty of November 17, 1880, between the United States and China. This I understand to be, in effect, the construction given these words by Boss, district judge, in Ms elaborate and well-considered opinion in the case of U. S. v. Ah Fawn, 57 Fed. 591, in wMch it was held that the words “Chinese laborers,” as used in the act of May 5, 1892, are broad enough, when read in connection with the treaty made between the United States and China on November 17, 1880, to include Chinese gamblers and “highbinders.” My conclusion is that the defendant was a laborer on November 3, 1893, witMn the meaning of the act of congress of that date, before referred, to, although he was then in the county jail, awaiting trial upon a criminal charge. He was a laborer at the time of Ms arrest, and Ms status as such was not changed by Ms subsequent imprisonment. Exceptions overruled, and judgment that the defendant be deported from the United States to China.