In re Ah Hin ex rel. Man Nun , 7 Haw. 454 ( 1888 )

Opinion of the Court by

Preston, J.

(Dole, J. Dissenting.)

This is an appeal from a decision of the Chief Justice, ordering that Man Fun and Ah Yin, two Chinese on behalf of whom an application for a writ of habeas corpus had been made, be remanded to the custody of the Marshal until the steamship Australia should be again in port.

Prom this decision an appeal was taken.

The circumstances under which the matter came before the Chief Justice are as follows :

On the 20th December, 1887, a law was passed to come into effect on the first day of March, 1888, “ to regulate Chinese immigration.”

Sections 2 and 3 of the law read as follows :

“ Section 2. From and after the 1st day of March, A.D. 1888, no vessel coming from parts beyond the Hawaiian Islands shall be allowed to land Chinese at any port in this Kingdom, unless said Chinese are provided with permits to enter the Kingdom, granted, signed and sealed by the Minister of Foreign Affairs of the Hawaiian Kingdom, under and subject to regulations to be prepared and published by him, by and with the consent of the Cabinet in Council, except as hereinafter provided, and excepting all Chinese to whom or for whom permission to enter the Kingdom has heretofore been granted, as shall be shown by the records of the office of the Minister of Foreign Affairs.”

“Section 3. If any master of a vessel shall land or attempt to land any Chinese without such permit as aforesaid, he shall be liable on conviction to a penalty of two hundred dollars for each Chinese unlawfully landed or attempted to be landed, and such passenger landed or attempting to land shall be liable on conviction to a penalty of fifty dollars; and the master of such vessel shall be compelled to re-embark such Chinese as may have unlawfully landed, and upon his neglect or refusal so to do, after notification by the Minister of Foreign Affairs, he shall be liable on conviction to a penalty of two hundred dollars or to imprisonment for a term not exceeding thirty days.”

On the 24th day of July last, the steamship Australia arrived in the port of Honolulu, the appellants being passengers: The appellant, Man Nun, having a passport or permit in the following terms :

“No. 782 B.

Passport, Issued under the regulations of March 25th, 1884, controlling the immigration of Chinese into the Hawaiian Kingdom.

Foreign Office, Honolulu, )

May 25, 1885. \

Permission is hereby granted to Goon Sung, lately residing at Hakalau, Hilo, on the Island of Hawaii, to enter the ports of this Kingdom on his return from China.

J. S. Webb, Secretary.

This passport must be delivered up to the Customs authorities by the holder on arrival at any port of this Kingdom.”

On the back is the following endorsement with the seal of the Hawaiian Consulate affixed':

“ Vise, Hong Kong, 10th June, 1888, for J. Bell Irving, Hawaiian Consul-General.”

The appellant, Ah Yin, had a similar passport, granted to “ Achong.”

The Customs authorities prevented the appellants from landing, and so notified the Master of the Australia.

On the 30th of July, Ah Hin petitioned the Chief Justice, on behalf of the appellants, for a writ of habeas corpus, alleging, inter alia:

“That the said Man Nun and Ah Yin are unlawfully and unjustly restrained of their liberty by H. C. Houdlette, master of the Hawaiian steam vessel Australia, on board of said steam vessel.

“That petitioner is informed and believes, and upon such information and belief avers, that the pretended cause of such restraint is, that the said Man Nun and Ah Yin had presented passports or permits for entering this Kingdom, which had been used before their presentation of the same.

“ That petitioner is informed and believes that said Man Nun and Ah Yin are not restrained by virtue of any warrant or other process.”

The Chief Justice issued the writ and appointed the next day (31st July) at 9 :30 a. m. for the hearing.

The appellants were produced in Court, and a return prepared by their counsel was filed by Captain Houdlette, “that he has the within named Man Nun and Ah Yin in his custody by virtue of an order of the Collector-General of the port of Honolulu, who has ordered respondent to hold them ; that respondent does not know the cause of such restraint and does not hold them under any process or warrant.”

The Chief Justice ordered the Attorney-General to be notified, who appeared and filed a supplementary return, wherein he averred that the appellants were legally detained by Captain Houdlette, “ for the reasons that the said Man Nun and Ah Yin are Chinese within the meaning of Chapter XXVIII. of the laws of 1887 (hereinbefore referred to). That said Man Nun and Ah Yin arrived at the port of Honolulu from a foreign port, to wit, the port of San Francisco, in the State of California, on board the steamer Australia. That said Man Nun and Ah Yin were not upon their said arrival, and are not now, provided wúth any legal permit or other sufficient authority to enter this Kingdom, as provided by said Chapter XXVIII., and that said detention, as complained of by petitioner, was and is owing to the refusal of the Customs officer of the Hawaiian Government to permit said respondent to land said Man Nun and Ah Yin upon Hawaiian soil.”

As the Australia was to sail at noon, the Court, with the concurrence of counsel, adjourned the hearing until the 3d August, and admitted the appellants to bail in the sum of $500 each.

At the hearing it appeared from the evidence of Man Nun, that neither he or Ah Yin had previously been in this Kingdom, and that they purchased the said passports from some China man in the office of the Hawaiian Consul at Hongkong for the sum of $28 each.

The Chief Justice allowed the sufficiency of the supplementary return made by the Attorney-General, and remanded the appellants to the custody of the Marshal until the return of the Australia.

An appeal was taken, and with the consent of the Attorney-General the appellants were admitted to bail.

By the Court.

By the law in question it appears to us the Legislature has clearly expressed its intention to prohibit the landing of Chinese in the Kingdom, except in the cases specially provided for.

It is contended that the appellants were detained in custody without warrant or due process of law.

The statute provides that ‘‘The Collector-General or any Collector of Customs shall have the authority to detain any person detected in or reasonably suspected of a violation of any of the provisions of this Act, and to hold him until a warrant of arrest can be obtained; ” and it is urged that the Collector-General had no authority to order the detention of the appellants, except for a time necessary to procure a warrant for their arrest.

But neither the Collector-General or the Government is bound to proceed against persons arriving in vessels in the manner of these appellants. They may take such steps as may be necessary to prevent such persons landing. Otherwise the whole scope and intent of the law might be defeated, by the authorities taking such persons from the vessel and charging them with attempting to land, for which a penalty of fifty dollars could be inflicted. The enforcement of such a fine would not deter the landing of such prohibited persons.

It may be conceded that the return made by Captain Houdlette is, in itself, not sufficient to justify the detention of the appellants. But we must look at the circumstances under which such return was made.

The application for the writ was made on the eve of the departure of the vessel.

We can well understand that the Captain would be desirous of relieving himself from the necessity of taking the appellants back, and would be glad of the chance of having the appellants released under the writ. The return was prepared by the appellants’ .counsel, and expressly states that the appellants were held without any process or warrant.

To allow the discharge of the appellants under such circumstances would render the process of this Court a means for enabling masters of vessels to evade the provisions of the law with impunity.

The supplementary return made by the Attorney-General puts the whole matter in issue, and we have to decide whether the facts stated in such return are a sufficient justification for the detention of the appellants, and whether at the time of the issuing of the writ they were detained under due process of law.

What is meant by authority, or due process of law? For ansAver Ave may refer to Hurd on Habeas Corpus, p. 401, and Church on Habeas Corpus, Section 160, and the authorities there cited.

From these authorities, commencing with Lord Coke, it appears that due process of law comprehends any authority, lawful warrant or proceeding, under which a person may be arrested, and a proceeding and warrant, either in deed or in law, without warrant.

The Legislature, in exercise of its undoubted right, has thought fit to prohibit the landing of Chinese in this Kingdom, except in certain cases, which do not apply to these appellants. And it is the duty of this Court to give effect to this legislation without considering its policy or Avisdom.

We cannot conceive of any higher warrant or authority in law, than the express enactment of the Legislature within its constitutional limits, forbidding the landing of Chinese without permits, and we are bound to hold that the Government had, by its officers, full authority to prevent the landing of prohibited persons upon the shores of this Kingdom, and in furtherance of such authority to notify and direct the masters of vessels, arriving with such persons on board, to detain and prevent them from landing. The law having imposed penalties upon the masters of vessels for landing such persons, it becomes their duty to detain them on board, and such detention is, in our opinion, by due warrant and process of law.

Paul Neumann, for appellants. C. W. Ashford (Attorney-General), for the Crown.

We therefore dismiss the appeal "and order the appellants to be remanded to the custody of the Marshal, as directed by the Chief Justice.