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LAU OW BEW V. UNITED STATES, 144 U. S. 47 (1892)

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U.S. Supreme Court

Lau Ow Bew v. United States, 144 U.S. 47 (1892)

Lau Ow Bew v. United States

No. 1458

Argued January 14, 1892

Decided March 14, 1892

144 U.S. 47


By section 6 of the Act of March 3, 1891, establishing circuit courts of appeals, 26 Stat. 828, c. 517, the appellate jurisdiction not vested in this Court was vested in the court created by that act, and the entire jurisdiction was distributed.

The words "unless otherwise provided by law" in the clause in that section which provides that the circuit courts shall exercise appellate jurisdiction "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law" were inserted in order to guard against implied repeals, and are not to be construed as referring to prior laws only.

It is competent for this Court by certiorari to direct any case to be certified by the circuit courts of appeals, whether its advice is requested or not, except those which may be brought here by appeal or writ of error.

Section 6 of the Chinese Restriction Act of May 6, 1882, 22 Stat. 58, c. 126, as amended by the Act of July 5, 1884, 23 Stat. 115, c. 220, does not apply to Chinese merchants, already domiciled in the United States, who, having left the country for temporary purposes, animo revertendi, seek to reenter it on their return to their business and their homes.

This is a writ of certiorari for the review of a judgment of the Circuit Court of Appeals for the Ninth Circuit affirming the judgment of the Circuit Court of the United States for the chanroblesvirtualawlibrary

Page 144 U. S. 48

Northern District of California in a case of habeas corpus which determined that Lau Ow Bew, the appellant, is a Chinese person forbidden by law to land within the United States, and has no right to be or remain therein, and ordered that he be deported out of the country, and transported to the port in China whence he came.

The proceedings in the circuit court are set out in the application for the certiorari, as reported in 141 U. S. 141 U.S. 583. The case was heard and determined in that court upon an agreed statement of facts, as follows:

"It is hereby stipulated and agreed that the following are the facts herein:"

"1st. That the said Lau Ow Bew is now on board the S.S. Oceanic, which arrived in the port of San Francisco, State of California, on the 11th day of August, A.D. 1891, from Hong Kong, and is detained and confined thereon by Captain Smith, the master thereof."

"2d. That the said passenger is now and for seventeen years last past has been a resident of the United States, and domiciled therein."

"3d. That during all of said time, the said passenger has been engaged in the wholesale and importing mercantile business in the City of Portland, State of Oregon, under the firm name and style of Hop Chong & Co."

"4th. That said firm is worth $40,000, and said passenger has a one-fourth interest therein, in addition to other properties."

"5th. That said firm does a business annually of $100,000, and pays annually to the United States government large sums of money, amounting to many thousands of dollars, as duties upon imports."

"6th. That on the 30th day of September, A.D. 1890, the said passenger departed from this country temporarily on a visit to his relatives in China, with the intention of returning as soon as possible to this country, and returned to this country by the steam-ship Oceanic on the 11th day of August, A.D. 1891."

"7th. That at the time of his departure, he procured satisfactory

Page 144 U. S. 49

evidence of his status in this country as a merchant, and on his return hereto he presented said proofs to the collector of the port of San Francisco, but said collector, while acknowledging the sufficiency of said proofs, and admitting that the said passenger was a merchant domiciled herein, refused to permit the said passenger to land on the sole ground that the said passenger failed and neglected to produce the certificate of the Chinese government mentioned in section 6 of the Chinese Restriction Act of May 6, 1882, as amended by the Act of July 5, 1884."

The circuit court rendered judgment September 14, 1891, 47 F.5d 8, which, the case having been carried by appeal to the Circuit Court of Appeals for the Ninth Circuit, was on the 7th day of October, 1891, affirmed, 47 F.6d 1.

On November 16, 1891, this Court, upon the application of appellant, ordered that a writ of certiorari issue to the circuit court of appeals, requiring it to certify the case up for review and determination, under section 6 of the act to establish circuit courts of appeals, approved March 3, 1891. 26 Stat. 826, 828, c, 517.

The fifth article of the treaty concluded July 28, 1868, between the United States and China, known as the "Burlingame Treaty," 16 Stat. 739, declares that:

"The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other, for purposes of curiosity, of trade, or as permanent residents."

Article VI of that treaty is as follows:

"Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation, and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions

Page 144 U. S. 50

in respect to travel or residence as may there be enjoyed by the citizens or subjects or the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States."

A supplementary treaty was concluded November 17, 1880, 22 Stat. 826, which recites, among other things, in its preamble, that

"whereas the government of the United States, because of the constantly increasing immigration of Chinese laborers to the territory of the United States and the embarrassments consequent upon such immigration, now desires to negotiate a modification of the existing treaties which shall not be in direct contravention of their spirit,"

and articles I and II of which are as follows:

"Whenever, in the opinion of the government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the government of China agrees that the government o