ÆäÀÌÁö À̹ÌÁö
PDF
ePub
[merged small][merged small][merged small][merged small][merged small][ocr errors]

The petitioner seeks release from an order of deportation. In his petition for writ of habeas corpus he states that he is a "native-born citizen" of the Philippine Islands, owing allegiance to the United States, and is denied admission and restrained of his liberty by the Commissioner of Immigration on the ground that he is an alien person, a "Chinese laborer"; that his restraint is without due process of law; and that, unless prevented by this court, he will be deported. A show cause order was issued, and the return of the Commissioner alleges that the petitioner is a "Chinese laborer," excluded under the

Chinese exclusion laws; that upon appeal from the decision of the Board of Special Inquiry to the Secretary of Labor such de

cision was affirmed.

It is disclosed by the record that petitioner is 26 years of age, born in the Philippine Islands September 24, 1898. His father was a Chinese and his mother a Filipino. There is no evidence where the father was born. He died in China, to which country he went when the petitioner was 5 years old. "The father and mother did not go through a regular marriage." Petitioner had never been in China until, coming to the United States, he stopped 3 or 4 months at Hong Kong en route. He says he has worked as a cook, waiter, and carpenter; as a cook about two years immediately preceding his arrival. He speaks some English, Chinese very well, and no Spanish. In the Philippines he says he ordinarily speaks "mixed Chinese, English, and Tagalog.'" He reads and writes only English. He has a passport, issued at the city of Manila, May 7, 1924, which reads in part as follows:

pine Islands owing allegiance to the United States, safely and freely to pass, and in case of need to give him all lawful aid and protection.

"Leonard Wood, Governor General." Upon the passport is impressed the seal of the "Government of the Philippine Islands, United States of America."

Hugh C. Todd, of Seattle, Wash., for petitioner.

Donald G. Graham, Asst. U. S. Atty., of Seattle, Wash., for the United States.

NETERER, District Judge (after stating the facts as above). This court, in Ex parte Goon Dip, 1 F. (2d) 811, and Ex parte So Hakp Yon, 1 F.(2d) 814, interpreted the immigration laws with relation to some phases of the Chinese Treaty and Exclusion Act, and to the status of Japanese under the immigration law and treaty stipulation. The respondent contends that the rights of the petitioner must be determined by racial and not political status; that, being the son of a Chinese father, he is within the provisions of the acts excluding Chinese. See footnote, Goon Dip, supra.

Section 1, Act April 29, 1902, amended April 27, 1904 (section 4337, C. S.), provides: "All laws in force on the twentyninth day of April, 1902, prohib

iting the coming of Chinese persons or persons of Chinese descent into the United States

extended

are

and

shall apply to the island territory under the jurisdiction of the United States, and prohibit the immigration of Chinese laborers, not citizens of the United States, from such island territory

wheth

[merged small][ocr errors][merged small]

"United States of America, The Philippine deportation of Chinese or persons of Chin

Islands.

"To All to Whom These Presents Shall Come-Greeting: I, the undersigned, Governor General of the Philippine Islands, hereby request all whom it may concern to permit Paulo Palo, a citizen of the Philip

ese descent to the country whence they came, is authorized. The Act of May 5, 1892 (Comp. St. §§ 4315-4323), continues the provisions with respect to exclusion of Chinese or persons of Chinese descent, for the period of 10 years.

3 F.(2d) 44

The Act of April 29, 1902 (Comp. St. §§ 4337-4339), amended and re-enacted and continued in force the laws relating to Chinese or persons of Chinese descent, and section 1 thereof (Comp. St. § 4337) provides that such law shall apply to Chinese laborers, whether in the Philippine Islands at the time of session or not, and section 2, Act Aug. 29, 1916, 39 Stat. 546 (Comp. St. § 3809), provides in substance that an inhabitant of the Philippine Islands, who was a subject on April 11, 1899, residing therein, shall be held a citizen of such islands, unless allegiance to the crown is preserved, and then empowers the Philippine Legislature to provide by law for acquisition of citizenship by the natives of the insular possessions, and such as are citizens of the United States, residing therein.

[ocr errors]

Section 9 of the Treaty says: "Spanish subjects, natives, ⚫ residing in the territory, ⚫ may remain. In case they remain they may preserve their allegiance to the crown of Spain ⚫ by making a declaration of their decision. In default they shall be held to have remained. The civil rights and political status of the native inhabitants shall be deter

mined by the Congress."

Section 1, Act Feb. 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 8 42894a), provides that "alien" shall "include any person not a native-born or naturalized citizen of the United States, but not be held to include Indians of the United States not taxed or citizens of the islands under the jurisdiction of the United States.

Section 38, Act supra (section 42891⁄4u) provides: "That this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent, except as provided in Section 19 hereof.

Section 19, 39 Stats. p. 890 (section 42894jj): "That the provisions of this section shall also apply to the cases of aliens who come to the mainland of the United States from the insular possessions thereof." Section 1, Act Feb. 5, 1917 (section 42894a): "The term 'United States,' as used in the title as well as in the various sections of this act shall be construed to mean the United States, and any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone."

Subdivision (b), § 28, Act 1924 (43 Stat. 168): "The term 'alien' includes any indi

vidual not a native-born or naturalized citizen of the United States, but this definition shall not be held to include Indians of the United States not taxed, nor citizens of the islands under the jurisdiction of the United States."

Subdivision (a), § 12 (43 Stat. 160): "For the purposes of this Act nationality shall be determined by country of birth

[ocr errors]

Section 25, Immigration Law 1924 (43 Stat. 166), provides: "The provisions of this act are in addition to and not in substitution for the provisions of the immigration laws, and shall be enforced as a part of such laws. An alien, although admissible under the provisions of this act, shall not be admitted if he is excluded by any provision of the immigration laws other than this act, and an alien, although admissible under the provisions of the immigration laws other than this act, shall not be admitted to the United States if he is excluded by any provision of this act."

"Immigration laws" means all laws, conventions, and treaties relating to the immigration, exclusion, or expulsion of aliens. Act 1924, supra; Ex parte Goon Dip, supra. In Department Rules of February 1, 1924, on pages 92 and 93, is inserted a map introduced by the following title: "Мар showing Asiatic zone prescribed in section 3 of the Immigration Act, the natives of which are excluded from the United States, and certain exceptions (sections indicated by diagonal lines covered by treaty and laws relating to Chinese). The Philippine Islands are United States possessions and therefore not included in the barred zone."

On page 105 of such rules, referring to section 1 of the act of 1917, it says: "For the purposes of the act citizens of the islands under the jurisdiction of the United States are regarded as though citizens of the United States." The immigration laws, taken together, obviously show that the word "alien" does not apply to the petitioner, a native-born of the Philippine Islands. By the rules of the Department of 1924, the act of 1917, supra, applies to every part of the United States except the Isthmian Canal Zone, and is enforced by the Immigration Service, except in the Philippine Islands, where it is enforced by the "officers of the general government thereof."

At common law, a native is a person born within the jurisdiction and allegiance of a country, irrespective of the allegiance of his parents, except the child of an ambassador. U. S. v. Wong Kim Ark, 169 U. S. 649, 18 S. Ct. 456, 42 L. Ed. 890; In re Look Tin Sing

(C. C.) 21 F. 905; U. S. v. Rhodes, 27 F. Cas. 785; McKay v. Campbell, 16 F. Cas. 157; Ex parte Chin King (C. C.) 35 F. 354. The petitioner, at birth September 26, 1898, was within the jurisdiction and allegiance of the crown of Spain. By the Treaty of Paris of December 10, 1898, he became, by failure to preserve such allegiance, a citizen of the Philippine Islands. He knows no other country; owes no other allegiance." "Undoubtedly, all persons born in a country are presumptively citizens thereof." U. S. v. Wong Kim Ark, supra, at page 718 (18 S. Ct. 483).

A person born in the Philippine Islands of a Chinese father and a Filipino mother, domiciled and residing in the Philippines, was admitted to bail in a deportation proceeding notwithstanding section 5, Act May 5, 1892 (Comp. St. § 4319) providing that a Chinese seeking to land and denied shall be denied bail (In re Go Siaco, 12 Phil. Rep. 490), and a person of similar status was held to be a citizen in Munoz v. Collector of Customs, 20 Phil. Rep. 494. The Supreme Court, in Gonzales v. Williams, 192 U. S. 1, 24 S. Ct. 177, 48 L. Ed. 317, held that "alien" has reference to persons owing allegiance to a foreign government; that citizens of Porto Rico are not "aliens."

Racially the petitioner may be a person of Chinese descent. Politically he is a native of the Philippine Islands. He is under the immigration laws neither an "alien" nor an "immigrant." He is in a class by himself, as is a Chinese born on the mainland of the United States, and is not within the intent and meaning of the exclusion laws.

The writ is granted.

Supplemental Decision.

Almost immediately after filing the memorandum opinion on December 31, 1924, under press of other pending business, I found I had erred in not differentiating between a Chinese born on the mainland of the United States and the petitioner, by saying that a person born on the mainland of the United States is, by reason of section 1, art. 14, Const., a citizen and entitled to admission (In re Look Tin Sing, supra), while the petitioner, a person of Chinese descent, by reason of birth on an insular possession and the provisions of the Chinese exclusion laws and the Act of April 29, 1902, which applies the exclusion provisions to Chinese laborers, whether in the Philippine Islands or not at the time of session, and this exclusion being carried into the Act of February 5,

[blocks in formation]

3 F.(2d) 46

with provable claims, to the amount of their outstanding; that between that date and respective payments for such capital shares February 17, 1920, the total number of in excess of the authorized capital stock of 2,000 shares of capital stock had been isthe corporation. The trustee filed objection sued. to the allowance of said claims on the ground that the shares in question were lawfully issued to the claimants; that no one but the commonwealth of Pennsylvania could question the validity of the shares; that, if there were any claim at all, it would be in tort; that the proper measure of damages was not specified in the claims objected to; and that claimants, by reason of their laches, are now estopped from complaining of the validity of the stock issued to them.

There was considerable testimony taken before the referee as to the claims in question and the objections filed thereto, and the referee reached the conclusion that the claimants were all de facto shareholders of the company, and that their stock could not be impeached in this proceeding, and therefore the referee rejected and disallowed all of these claims.

The petitioners for review except to certain findings of fact, or rather, we might say, to failure on the part of the referee to find certain facts. In the argument at bar, and in briefs filed, the petitioners for review do not urge their exceptions to the findings of fact of the referee, and we might properly assume that the petitioners did not care to press the exceptions. However, we have carefully reviewed the testimony in this case, and find that the referee has properly found all the facts necessary for a correct determination of the legal questions involved in this case, and we confirm all the findings of fact as made by the referee, and dismiss the exceptions thereto.

[1] The petitioners also except to the legal conclusions arrived at by the referee and to the dismissal and disallowance of their respective claims. The claims involved in the petition for review are 26 in number, and are those stated in the certificate of the referee under date of March 18, 1924. Briefly, the findings of fact show:

That the bankrupt was incorporated under the laws of Pennsylvania on January 21, 1918, with an authorized capital of 2,000 shares, of $100 each, a total of $200,000. That on February 17, 1919, the directors, by unanimous vote, attempted by a mere vote of the directors to increase the authorized capital stock of the company from $200,000 to $250,000. All the directors were present at this meeting, and they owned 1,500 shares of the 1,741 shares of the capital stock then

That June 24, 1921, when the total number of shares issued exceeded the original 2,000 shares, a special meeting of shareholders was held, at which it was voted by the owners of 1,995 shares of stock to increase the capital stock of the company from $200,000 to $350,000, but that of this 1,995 shares but 1,851 were shareholders of the original 2,000 shares. That on March 20, 1922, there was filed in the office of the secretary of the commonwealth of Pennsylvania, a return of the corporate election on June 24, 1921, regular in form in every way, showing that the directors of the company, on June 24, 1921, voted for this increase and submitted the question to special meeting of stockholders to be held June 24, 1921, and that all the stockholders of the company owning 2,000 shares of the stock waived the constitutional and statutory notice of this meeting to vote on this increase, which fact was verified by the oath of the secretary of the company, and that judges of election were sworn and conducted the election on the increase, which resulted, as shown by the return filed with the waiver of notice, in 1,995 being cast in favor of the increase and none against it. That on the same date a return of the company in due form was filed with the secretary of the commonwealth, showing that the stock of the company had actually been increased in the sum of $61,600.

That as a matter of fact the waiver of notice of the meeting of June 24, 1921, was signed by only 1,861 shares of the original 2,000 shares and lacked the signature of 9 holders of the first 2,000 shares, who held in the aggregate, 139 shares. That at the annual stockholders' meeting of the company held on January 21, 1922, it was reported by the secretary that the necessary steps had not been taken to complete the increase of capital stock, and that those who held stock in excess of the first 2,000 shares were not entitled to vote at the meeting, and by the attorney that the necessary papers for the increase have been prepared and not filed, owing to lack of a certified check for the filing fees. Following this meeting, an attempt was made to get another waiver of notice signed up, but on failure, under the advice of the company's attorney, the original waiver of notice and return of election at the meeting of June 24, 1921, was filed as above stated.

That on January 21, 1922, directors of the company voted to increase the capital

stock from $200,000 to $350,000. That at or after the meeting of January 21, 1922, some of the shareholders demanded their money. That the company, since the date of the meeting of June 24, 1921, had incurred debts which were proved as claims in bankruptcy.

On this state of facts, we cannot convict the referee of error in his legal conclusions. The most that can be said of the stock in question here is that it was irregularly issued. It was not void. There was authority to increase it. Section 7 of article 16, Const. Pa., and Act Feb. 9, 1901 (P. L. 3), as amended by Act April 22, 1905 (P. L. 280; Pa. St. 1920, § 5668). The action of the corporation, as shown by the certificate of corporate action of June 24, 1921, and

We

the return of stock issued thereunder, was regular in form, although not promptly filed. The referee has carefully collected and commented on all the cases bearing on the subject. These claimants were all de facto stockholders of the company and do not possess provable claims in bankruptcy. affirm the referee's conclusions of law on his most excellent and painstaking opinion. [2] In addition, we are also of the opinion that the petitioners are estopped, so far as this bankruptcy case is concerned, from claiming to be anything but stockholders, in view of the fact that, after they paid in their contribution to the capital stock and received their certificate, credit was extended to the company and debts created which are now provable debts in bankruptcy; and whatever may be the position of these claimants as against the company, as against the rights of intervening creditors, they are not entitled to participate in the distribution of the bankrupt's estate as a creditor. Matter of Desnoyers Shoe Co. (D. C. Ill.) 32 Am. Bankr. Rep. 51, 210 F. 533.

An order may be entered, confirming the order of the referee, and disallowing the claims of the various petitioners for review.

THE DEFIANCE.

(District Court, E. D. North Carolina. November 15, 1924.)

1. Maritime liens 24-Statute held not to bar proof that supplies or equipment were furnished on credit to owner alone.

Merchant Marine Act 1920, § 30, subsec. P (Comp. St. Ann. Supp. 1923, § 81464000), giving maritime lien for supplies furnished vessel enforceable by suit in rem in which it shall not

be necessary to allege or prove that credit defeat lien, that supplies or equipment were was given to the vessel, does not bar proof, to furnished on the credit of the owner alone. 2. Maritime liens 24-Sale of marine engine to owner of vessel on credit of owner alone held not to create lien.

Written contract for purchase of marine engine by owner and master of vessel, not mentioned therein, in which seller reserves title and which excludes verbal understandings or agreements, held not to create maritime lien under Merchant Marine Act 1920, § 30, subsec. P (Comp. St. Ann. Supp. 1923, 81464000), notwithstanding stipulation in notes that lien shall not be affected, since engine was furnished on the credit of the owner. 3. Evidence

442 (6)-Seller's opinion that

it had not waived lien not admissible where written contract excluded verbal understanding.

Where contract for sale of marine engine was complete in itself, and provided that "no

verbal understanding whatsoever" should affect

the rights of either party, testimony that seller considered that it had not waived its maritime lien was not admissible.

4. Maritime liens 24-Seller's opinion that maritime lien existed held not to create lien.

The mere fact that seller of marine engine, sold on credit of owner and not credit of vessel, considered that maritime lien existed, would not of itself create lien, under Merchant Marine

Act 1920. § 30, subsec. P (Comp. St. Ann. Supp. 1923, § 81464000).

5. Maritime liens 24-Lien defeated by fail

ure to make delivery of engine to vessel's side.

A maritime lien under Merchant Marine Act 1920, § 30, subsec. P (Comp. St. Ann. Supp. 1923, § 81464000), for marine engine, if lien existed, was defeated by unconditional delivery of engine to owner at point distant from vessel, instead of to vessel's side.

6. Maritime liens 31-Transferee of note ac

quired no lien where seller itself had no lien.

Where no maritime lien existed in favor of seller of marine engine, transferee of purchase-money note acquired no lien.

7. Maritime liens 24-One who advanced money on personal credit of master for purchase of marine engine acquired no lien.

One who, on master's credit, advanced monrine engine, acquired no maritime lien under ey with which master of vessel purchased maMerchant Marine Act 1920, 30. subsec. P (Comp. St. Ann. Supp. 1923, § 81464000).

8. Admiralty 16-Priority of mortgage could be determined in libel against vessel by lien claimant.

In libel against vessel by lien claimant, priority of mortgage could be determined, though mortgage, being in its nature nonmaritime, could not have been made basis of a libel in rem.

In Admiralty. Libel by Fairbanks, Morse & Co., Incorporated, against the motor vessel Defiance, in which sundry intervening libels were filed. Decree for respondent.

« ÀÌÀü°è¼Ó »