The herald., 1893-07-01
u3Ne M KEN, WILL GO WHEA2
Juege Ross to Hear His Appeal
Arguments. y
'be Attempt to Enforce the Geary
r. Act Takes o New Turn.
The Important Points Touched Upon
IN the Decision Given by
Judge Ross Yesterday
Morning.

Judge =. M. Ross proposes TO slt on
hin case himself.
Yesterday he denied the motion OF
the United States district attorney to
dismiss the appeal prayed for by A. B.
Hotchkiss, counsel for the defendant,
and win sit next Monday for hearing the
appeal.
His decision was in accordance with
an opinion which touches upon some
very important points, but the question
of the constitutionality OF some OF the
provisions OF the Geary act is reserved
for the appeal hearing next Monday.
The points made by Judge Ross, in con-
nection with the case. are as follows:
This is Q motion on behalf OF the
United Statss to dismifH an appeal taken
from an order made by q court commits
sioner for this district, directing that he
be imprisoned at hard labor in the state
prison at San Quentin and thereafter de-
ported to China.
The proceedings before the commits
sioner were commenced by the filing
with him OF verified complaint, charg-
ing that after the passage of the act OF
congress, entitled "An act to amend an
act entitled an act to execute certain
treaty stipulations relating to Chinese
approved May 6, 1882 (22 United States
statutes, p. $751;" one Ming Lee Tue did
come into the United States from for
eign place, and, having come, has re-
manned within the United States that
the said Ming Lee Tue has been found,
and now is unlawfully within the United
States, and that at all times herein men,
toned the said Ming Lee Tue was and is
o Chinese laborer."
Upon this complaint o warrant was
Issued by the commissioner, and the de-
fendant, whose true name was found to
be Wong Dep Ken, having been appre-
hended, an examination OF the charge
was had before the commissioner, who
from the evidence edduced, found him
to be Chinese person and q lsborer by
occupation, and who found and adjudged
him to be unlawfully within the United
States, and therefore ordered:
First--That said Wong Dep Ken be
imprisoned at hard labor for the period
of two (2) days at the states prison of
the state OF California at San Quentin,
in said state OF California.
Second-That thereafter said Wong
Dep Ken be removed fiom the United
States to China; and | order that said
deportation Of said Wong Dep Ken be
made from the port Of San Francisco
within the limits of the northern dis
trict of California, and / further order
that said Wong Dep Ken be, and he 10,
hereby committsd to the United States
marshal for the Southern district of
California for the purpose Aforesaid.
The appeal is from this order, and is
taken by virtue OF the 18th section of
the act OF congress entitled 'an act to
prohibit the coming OF Chinese laborers
to the United States," approved Sep
tember l3, 1883, (25 United States stat
utes, p. 476). ...-... -.---.--.l-
In United States vs. Gse Lee, so fed
eral reporter, page 27l, it was decided
by the circuit court of appeals for this
circuit that such portions of the sfoYe-s
eaid act OF September 13, 1888, as do
pended upon the ratification OF treaty
then pending between the United States
and the Emperor OF China, but which
failed of ratification, never went into
force, but that section Is OF the act was
not go dependent and did become law.
The same conclusion was reached in
case reported in AZ Fed. Rep, 43S and
878, and in So Fed. Rep, SO. The por-
tion Of that section which is applicable
to the present case reads az follows:
"That any Chinese person, or person
OF Chinese descent, found unlawfully in
the United States or its territories may
be arrested upon q warrant issued upon
q complaint, under oath, filed by any
party on behalf OF the United States, by
any justice. judge or commissioner OF
any United States court, returnable be-
fore any justice. judge or com missioner
OF q United States court, and when con-
victed,. upon hearing, and found and
ndju6ged to be not lawfully entitled to
be or remain in the United States, such
person shall be removed from the
United StateB to the country whence he
came. But any such Chinese person
convicted before a commissioner of q
United States court may, within ten
days from such conviction, appeal to
the judge OF the district court for the
district. :" -
The circuit court of appeals, In
United States VS.. Gee Lee, supra, fur
ther held that the phrase, s'district
Judge OF the district" in Sec. I3 of the
act Of September 13, 1888, is equivalent
TO the words, "ths district court for the
dietrict."
It is npt denied by the counsel for the
government that Sec 13 of the act OF
September Is, 1888, became law, or
that the defendant's right of appeal ex-
iats If 1t has not been taken away by
subsequent inconsistent legislation. 1t
ls contended, however, that that result
has been wrought by the third section
Of the act OF congrees entitled "An act
10 prohibit the coming Of Chinese per-
sons into the United States" approved
May 5. 1892, known as the Geary act.
tStatutes 1891 1882, D. 25.)
So for from this latter act repeating
any Of the provisions of any former act
'n this subject, 1t starts out by enact
ing:
THAT all laws now in force prohibit
ing and regulating the coming into thie
:ountry OF Chinese persons and persons
II Chinese descent are hereby continued
in force for period of 10 years from the
passage OF this act"
Its second section declares the country
10 which such person or persons, in the
went of deportation, shall DO sent.
The third section. which it is con-
ended by the governments attorney
'epeals that portion Of nection IS of the
Ict Of September l3, 1855, giving the
tight Of appeal from the order OF the
commissioners, merely prescribss iule
pf evidence. Its language is: "That any
Chinese person, or person OF Chinese
descent, arrested under tho provisions
II this act or the acts hereby extended.
hall he adindged In he IN lawfs,llv with