The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-08-02

the appellant or the risk of defeat of
the purposes of the Act''
HARD CONDITIONS.
In this case, SO far as the allegations
OF the petition go, the prompt exam
ina tion of the said Chop Tin took place
upon his arrival on the 1st day of June.
without opportunity on his part to pro-
cure or produce witnesses or to make
any showing other than his statement
through an interpreter and apparent
ly without counsel. Upon this examin-
alton decision was rendered refusing
Chop Tin the right to land Notice of
appeal was given and perfected on the
3rl of June. At this stage, through the
efforts of petitioner, counsel was Or
tanned on the 4th of June and the In
srector in charge thereupon extended
the time in which the said Chop Tin
might make a further showing of his
mercantile character and of his right to
land, until June 7th. 1t would appear
from the rules above referred to that
so much time at least was allowed by
them for further preparation. Such
extension of time allowed no possible
opportunity for Chop Tin to produce
the evidence required, without charter
ing steam vessel. The necessary evi-
dence was on the Island of Kauai. 100
miles away, that being his former resi-
dence. The 4th of June came on Sat-
urday. I think the court may take ju-
dicial notice of the fact that there are
no regular departures of vessels for
Kauai from the port of Honolulu on
either Saturday or Sunday and that
there are no regular departures for Ho-
nolulu from the Island of Kauai on
either Sunday or Monday. Under these
circumstances 1t was impracticable for
Chop Tins counsel to produce the evil
dence in question within the three days
ending June 18th. 1t might and should
have been produced June 18th, although
the explanation of the failure to do 50
Is some excuse 1t was not produced un-
til June 18th and then. according to
the allegations of the petition. was not
considered or received by the Immi-
grafton officer, Mr.. Brown or any other
person authorized to act in the prem
ises.
RULES ARE DEFICIENT.
The rules referred to above, however
reasonable they may be in regard to
other classes of applicants for admis-
sion, are singularly inappropriate for
the investigation of applications for ad-
mission on the ground that the appli-
cant was formerly engaged in this
country as merchant, in which class
or cases, as stated above, the statute
requires the applicant to establish the
necessary facts by two nom Chinese
witnesses, which implies, in all fair
ness, that the applicant shall have a
reasonable opportunity to produce such
witnesses. The failure of the Immigra-
tion officer in this case to allow suffi-
cient time for the applicant for admis-
sion to produce the proof required by
tn" statute would have occasion
injustice" to him If his evidence had |
been sufficient. The provision of Rule |
10 for an allowance for further time |
does not make it matter of discretion |
with the Inspection officer, whether |
such further time shall or shall not be |
allowed. In a negative way it requires |
such delay if in the judgment of the
officer a refusal would result in injus-
tice to the applicant. The statute, by |
implication, requires an opportunity to |
De given the applicant to produce the ,
proofs which it makes necessary to his
admission. That injustice must result
10 bona fide applicant for admission
IN the ground of former occupation as
l merchant in this country, who has
made long voyage with such an OBJ
ect in view and who is ready to offer
sufficient statutory proofs. and is ar
oitrarily refused an opportunity to do
so, cannot admit of a doubt, and such
must be the judgment of any intelli-
gent and unbiased person.
DECISION ON FACTS.
The other grounds of the demurrer
re upon the insutficlency of the facts
.lleged.
Copies of affidavits of two non-Chi-
lese illnesses are made a part of the
'etition. These affidavits make the
ase as prepared for the consideration
4 the immigration officer, and which it
s alleged he refused to receive and
consider. The allegations of these afi-
lavits are insufficient in the Judgment
y this court to prove that the said
hop Tin was a merchant within the
meaning of the said Act of November
w, 1900 III tLil II is IlOI SHOWN tnat
he business of the firm of Lung Tai
Ian of which he claims to be a part
Ter, was conducted in his name, which
words, under the leading authorities,
equire that the interest of the mer-
hant must be real and appear in the
BUSINESS and partnership articles in his
'wn name" Lee Kan VS.. United K;
states, 81 Fed. Rep. 914, 9lS. The law
equires this fact, among others. to be
established by two n-Chinese wit I
lesses and that "in default of such {
roof Che applicanD shall be refused
arding." Act of November 3rd 1898,
Sec. g If the immigration Inspector !
lad received and entertained the aff1-
avits in question. he must have refus-
i admission to the applicant, for the
easons stated above, i. e., the absence
Il any evidence tending to show that
lis interest in the firm of Lung Tai Jan
vas real and appeared in the business
md lrtnership articles in his own
lame.
This being the case It does not ap-
bear that the said Chop Tin has any
hing TO complain of as to his deten-
ion.
The demurrer is allowed on this