The herald., 1893-08-01
THIS CHINESE MUST GO P DO,
But He Should Not Have Been
Sentenced to Labor.
Judge Ross's Opinion in the Wong
Dep Ken Case.
He Holds that Commissioner Van Dyke
Erred In Sending the Chinese to
Jail, But the Deportation
Portion Goes.

QletrlCt court, rendered ueCiHlOn III Cne
Wong Dep Ken case, appealed from
Commissioner Van Dyke. Wong Dep
Ken was arrested at the instance of the
Federated Trades, early in June Last.
under the act OF 1882, now incorporated
in the Geary act. which provides that
all Cinnamon found unlawfully in the
United States after the passage OF the
act shall be deported. This act is now
incorporated in the Geary law, and is
known as section 4 of that act. Wong
Dep Ken was cigar maker. He
claimed to be a partner in the
business with the man for whom
he was working. He was held
before United States Commissioner Van
Dyke on June Goth last, and was found
to have been unlawfully in this country,
and it was ordered that ne should be
imprisoned at hard labor for two days
in the states prison at San Quentin and
afterwards he should be deported to
China. An appeal was taken to the
United States district court, and the case
was tried and submitted ON briefs. The
time for the filing of briefs expired last
Wednesday, and Judge Ross delivered
his opinion yesterday, affirming the
judgment of the commissioner as to the
deportation of Wong Dep Ken, but an
nulling the clause in the judgment as to
imprisonment, holding that the act ae
to the imprisonment at hard labor was
unconstitutional.
The decision in full is as follows:
This is an appeal taken by the de-
fendant. Chinese person, from an or
der made by court commissioner Tor
this district directing that he be impris-
oned at hard labor in the state prison
at San Quentin and thereafter deported
to China.
The proceedings before the commits
missioner we're commenced by the filing
with him of verified complaint charg-
ing that, after the passage of the act OF
congress entitled IAN act to amend an
act entitled AN act to execute certain
treaty stipulations relating to Chinese" >"
approved May 6, 1882, (22 U. S. Stats,
p. 5S) lone Ming Lee fue did come into
the United States from foreign place,
and, having come, has remained within
the United States; that the said Ming
Lee Tue has been found, and now is un-
lawfully within the United States, and
that at all the times herein mentioned
the said Ming Lee Tue was and ia a
Chinese laborer."
Upon this complaint warrant was
issued by the commissioner. and the
defendant, whose true name was found
to be Wong Dep Ken, having been ap-
pretended, an examination OF the
charge was had before the commissioner,
who, after examination, found him to
be Chinese person and a laborer by
occu cupation, and who found and ad.
judged 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 ~ dsvs at the states prison oil
the state of California at San Quentin,
in said state of Californis;
"Second-That thereafter said Wong
Dep Ken be removed from the United
States to Cbirs; and | order that said
deportation Z. .l.e said Wong Dep Ken
be made from the port of San eBrancis-
co, within the limits of the northern
district of California. and Iisfurther
order that said Wong Dep. Ken be, and
he is, hereby committed to the United
States marshal for the southern district
of California for the purposes sfore.
said"
The appeal was taken by virtue of the
18th eection OF the act of congress, en-
titled. "An act to prohibit the com ne
OF Chinese laborers to the United
Statea," approved September Ii, 1883
(25 U. s. statutes, p. 476) A motion
made On behalf OF the government to
dismiss the appeal was recently denied
by the court. for reasons given in an
opinion filed on June 30th last. The
appeal is now for disposition upon its
merits.
1t appears from the record that the
commissioner found from the evidence
adduced before him that the defendant
is Chinese person and a laborer by oc-
cupation that defendant failed to estab-
lish, By affirmative proof, to the satis.
faction OF the commissioner, his lawful
right TO remain in the United States,
and that he did not make it appear to
the commissioner that he, defendant, is
subject or citizen of any other country
than China. Based upon these facts,
the judgment and order appealed from
were gwen, and they rest for their sup.
port upon the provisions of the act oi
congress entitled IAN act to prohibit
the coming OF Chinese persons into the
United States," approved May 5, 1892
known as the Gaary act (Statutes 1891
1892, p. 25). The third section of that
act is as follows:
THAT any Chinese person or person
OF Chinese descent arrested under the
provisions of this act or the acts hereby
extended ahall be adjndged to be unlaw-
fully within the United States unless
such person shall establish, by afirma-
tive proof, to the satisfaction of such
Justice, Judge or commi ssioner, his law.
full right to remain in the United
States;'' and it's fourth section reads:
That any Chinese person or person
of Chinese descent convicted and
adiudged to be not lawfully entitled tc
be or remain in the United States shall
be Imprisoned at hard labor tor a period
OF not exceeding one year and there
after removed from the United States,
as hereinbefore provided" that Is to
say, as provided by the second section oi
the act, which is as follows:
THAT any Chinese person or person
OF Chinese descent, when convicted and
adiudged under any of said laws to be not
lawfully entitled to be or remain in the
United States, shall be removed from
the United states to China, unless be
or they shall make it appear to the jus,
tics, Judge, or commissioner before
whom he or they are tried that he OF
they are subjects or citizens OF some
other country, in which case he or they
shall be removed from the United States
20 such country: Provided, that in any