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
Page 193 U. S. 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 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
Page 193 U. S. 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 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."
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
Page 193 U. S. 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, 193 U. S.
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 been
Page 193 U. S. 521
unable 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 193 U. S. 522
The commissioner was doubtless influenced by the intimation in
the
Pin 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 a
bona fide merchant, 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 Kan v. 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 also Wong Ah Gah v. United
States, 94 F. 831;
Wong Fong v. 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 Bak
Kan v. 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 which
Page 193 U. S. 523
he 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
were
bona 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, the
Judgments are reversed, and appellants discharged.
