Gambar halaman
PDF
ePub

163 Fed. 1008, 1009, 90 C. C. A. 178 (C. C. A. 2]; Siniscalchi v. Thomas, 195. Fed. 701, 703, 115 C. C. A. 501 (C. C. A. 6]), and hence we see no reason why the government could not rightfully call petitioner to state the place of his birth and explain his presence in the United States, since his right to remain here might depend upon such facts as he could give.

This, however, does not settle the question whether petitioner was accorded a full and fair hearing. The hearing was opened by the inspector's examination of petitioner, and it is plainly to be inferred from the questions put by the inspector that his purpose was to discredit petitioner. It soon became evident, if this was not so at the preliminary hearing, that petitioner was of Chinese descent, and that the defense intended to be relied on was that he is a native-born citizen. Testimony was offered, through petitioner and some of his witnesses, which, if true, shows that he was born in San Francisco; that his mother abandoned her husband and petitioner when the latter was between 3 and 4 years of age, and has not been heard from since; that owing to this abandonment, and the death of his father, petitioner was taken in charge by his former nurse, who had intermarried with a witness who testified here as petitioner's foster father; that this couple removed to Wahlee Island, which seems to be in the Sacramento river, near Stockton, and a few hours' ride from San Francisco, taking the boy with them; that the foster father maintained a store on this island for some 10 years; that the permanent population of the island was small and composed of Chinese, though during the season for gathering the crops, principally potatoes, large numbers of laborers were brought to the island; that petitioner lived with his foster parents on this island 10 or 12 years, when the foster mother died and the foster father removed to Cleveland, and subsequently removed petitioner to the same place; that petitioner had been in Cleveland and Akron some 4 years before his arrest; and that he had never been outside of the United States.

[2] This was met, as before indicated, by a sworn statement of Inspector Chatfield, of Detroit, that he had seen petitioner "about 9:25 p. m. on May 16, 1914, in Windsor, Ontario"; but in view of the testimony of a well-known teacher of Cleveland it is practically admitted that the inspector was mistaken. Next, the government presented two other statements, one by an inspector of El Paso, and the other by an inspector at Sacramento. The first inspector, Jose Salazar, upon being shown a photograph said to be one of the petitioner, stated that he had seen him in Juarez and in Chihuahua "many times” and that he knew him "very well.” He first stated that he had seen petitioner "a little less than a year before,” though he said, further, that he could not "just exactly give the right date; it has been a few months ago.” This statement bears date August 11, 1914. The statement of the inspector at Sacramento, C. H. Hannum, is dated August 10, 1914, and is to the effect that he had made “such investigations as were possible concerning Wah Lee, Bolley or Polley Island"; that he had visited Chinatown, and "was informed by Chung Jung that Bolley Island was Bouldin Island, in the delta between the Sacramento and San Joaquin rivers, and that it had been flooded for 6 or 7 years, and no

body had raised any crops on it during that time, although it had formerly produced two or three crops of potatoes on a portion of it"'; that “this statement was verified by six or seven old Chinese," and, as he was informed at the office of the state engineer, "that in January, 1907, the levees reclaiming the island had washed out, and that the break was exceedingly deep; that since that time no effort had been made to reclaim any portion of it.” He further states:

“This island is formed by the south fork of the Mokelumme river, Potato slough, and the San Joaquin river. I have passed the island, and know that the conditions are at present as described by officials in the state engineer's office and by Mr. Shinn, and which they claim have existed since 1907.”

These statements were not presented at the hearing before Inspector Francis, they seem to have been taken after the hearing was closed, and complaint was made of them by counsel for petitioner at the oral argument here. It was insisted that the statements had been taken without notice to counsel, and that no opportunity had been given to cross-examine either Salazar or Hannum. Since the cause was submitted here the United States attorney has presented a motion for permission to introduce "certain records not hereinbefore filed and made a part of the record.” The government supported the motion by affidavit, and counsel for petitioner contested it by brief. In view of some of the papers so sought to be introduced, we have concluded to grant the motion. It appears in one of these papers that counsel for petitioner received the statements of these two inspectors, Salazar and Hannum, on September 4, 1914; yet it nowhere appears that the government informed the petitioner that he would be given opportunity to explain and meet either of the statements, nor does it appear that even the photograph shown to Salazar was ever exhibited to petitioner or his counsel (much less that petitioner was confronted with Salazar-Backus v. Owe Sam Goon, 235 Fed. 847, 853, 149 C. C. A. 159 (C. C. A. 9]), and the photograph itself is not to be found in the record.

Considering the character of these proceedings, it was obviously necessary to a fair hearing that petitioner or his counsel be accorded at least seasonable opportunity to examine the photograph and to contest the statements so relied on, instead of being put to the burden of demanding the right to take further proofs, since, in view of the course the examining inspector was pursuing, there would seem to have been but slight reason to expect that such a demand would be granted. It is apparent from the statements themselves that Inspectors Salazar and Hannum, like Inspector Chatfield, may have been mistaken. We are not impressed by the statement of the former; and, in view of the confusion in names and location given to the island in question, it is possible, if not probable, that the parties were not speaking of the same island. Furthermore, none of the witnesses appeared before the trial judge; and, in a proceeding conducted as this one was, we regard such a fact as important. It is important to petitioner and such of his witnesses as testified to the place of his birth, and also to his environments prior to his removal to Cleveland. True, the petitioner and some of his witnesses made contradictory statements,

and some were otherwise contradicted; and yet there seems to be substantial testimony showing that petitioner was born in San Francisco and has never been outside of the United States, and, particularly in view of the corroborative effect of the testimony of the teacher of Cleveland, that petitioner is entitled to credence.

However, it is not meant to pass upon the credibility of any of these witnesses; for, in determining the question whether a full and fair trial was given, it is enough to know that on the vital issues the government secured the benefits of cross-examination of petitioner and his witnesses alike, while the petitioner has received no corresponding advantages and has been deprived even of the opportunity to meet and explain the ex parte statements mentioned of the government's witnesses. Surely, if the testimony of petitioner and his witnesses is not true, this ought to be shown by substantial evidence and under circumstances that would give to petitioner reasonable opportunity to meet it. It is true, as counsel claim, that the inspector who investigated into the conditions of petitioner's presence in Cleveland also sat in hearing of such testimony as was produced in the presence of both sides; and although he did not in terms recommend that petitioner be deported, his “summary" of the evidence is, we think, in material respects immoderate and calculated to create erroneous impressions. Inspector in Charge Fluckey made the recommendation to deport.

[3] It is a recognized rule that while a decision of an executive officer clothed with power to deport aliens will not be subjected to technical tests, yet the guaranty of due process forbids the deportation of a respondent without according to him a full and fair hearing. Lewis v. Frick, 233 U. S. 291, 300, 34 Sup. Ct. 488, 58 L. Ed. 967. We think this was not done here, and consequently that the case has sufficient analogy to the class of decisions like Whitfield v. Hanges, 222 Fed. 745, 756, 138 C. C. A. 199 (C. C. A. 8), to require that the decree be reversed, and the cause remanded to the court below, with directions so to modify the order from which the appeal was taken as to retain jurisdiction and custody of the petitioner, subject, however, to bail, and to hear and determine the case on its merits, de novo, on such evidence and proofs as the parties may offer under the warrant of arrest. We are the more content to adopt this course since a question . of citizenship is involved here (Chin Yow v. United States, 208 U. S. 8, 13, 28 Sup. Ct. 201, 52 L. Ed. 369; United States v. Petkos, 214 Fed. 978, 980, 131 C. C. A. 274 (C. C. A. 1]; and see Ex parte Chin Loy You [D. C.) 223 Fed. 833, 839), and an order will be entered accordingly.

THEO. HAMM BREWING CO. et al. v. CHICAGO, R. I. & P. RY. CO. et al.

STATE OF IOWA V. THEO. HAMM BREWING CO. et al.

(Circuit Court of Appeals, Seventh Circuit. April 10, 1917. Rehearing Denied

May 31, 1917.)

No. 2369.

1. COMMERCE 14 INTERSTATE COMMERCE-INTOXICATING LIQUORS.

Webb-Kenyon Act March 1, 1913, c. 90, 37 Stat. 699 (Comp. St. 1916, $ 8739), prohibiting transportation of intoxicating liquor from one state into another, which is intended to be received, possessed, sold, or used in violation of any law of such state, does not simply forbid the introduction of liquor into a state for a prohibited use, but takes the protection of interstate commeree away from all receipt and possession of liquor prohibited by state law.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. $$ 30, 92.] 2. INTOXICATING LIQUORS m111--STATUTORY REGULATIONS.

While Code Iowa, § 2419, prohibiting the transportation or conveyance of intoxicating liquors to any person within the state, was ineffective and invalid as to interstate shipments, in the absence of congressional authority, since the enactment of the Webb-Kenyon Act it is in full force, unless repealed by some later statute.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent, Dig. $ 121.] 3. INTOXICATING LIQUORS Cm111-STATUTORY REGULATIONS.

Code Iowa, § 2419, prohibiting the transportation or conveyance of intoxicating liquor to any person within the state, was not repealed by implication by Code Supplemental Supp. 1915, Š 2421b, requiring railroad companies transporting intoxicating liquor to keep a record thereof, and providing that no such liquors shall be delivered to the consignee until he enters his name and residence or place of business upon such record book, and certifies that the liquor is for his own lawful purpose or private consumption, since the purpose of the later act was to make more stringent regulations, and any inconsistency with section 2419 is explained by the fact that, when it was enacted, there was grave doubt whether the federal statute had effectually removed the impediment to the full operation and enforcement of section 2419.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 121.) 4. INTOXICATING LIQUORS m11272, New, vol. 20 Key-No. Şeries-REGULATION

-TRANSPORTATION.

Though Code Iowa, § 2419, prohibits merely the transportation or conveyance of intoxicating liquor, the receipt of the liquor from the carrier is a violation of the law, so as to bring the transportation of the liquor by an interstate carrier within the condemnation of the Webb-Kenyon Act, since, while the recipient of the liquor may not, as such, be a violator of the law, his receipt of the liquor from the carrier necessarily involves

the violation of the law by the carrier. 5. INTOXICATING LIQUORS 11212, New, vol. 20 Key-No. Series-REGULATION

-TRANSPORTATION.

A carrier of intoxicating liquor has an interest therein within the Webb-Kenyon Act, prohibiting the transportation of intoxicating liquor intended by any person interested therein to be received, possessed, sold, or used in violation of any law of the state into which it is transported.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Suit by the Theo. Hamm Brewing Company and others against the Chicago, Rock Island & Pacific Railway Company and others, in which the State of Iowa intervened. From a decree granting a permanent injunction, the intervener appeals. Reversed and remanded, with directions.

See, also, 215 Fed. 672.

George Cosson and C. A. Robbins, both of Des Moines, Iowa, for appellant.

Frederick W. Zollman, of St. Paul, Minn., for appellees.
Before KOHLSAAT, MACK, and EVANS, Circuit Judges.

MACK, Circuit Judge. This is an appeal by the intervener, the state of Iowa, from a decree of the District Court making permanent its preliminary mandatory order directing the receiver for the Chicago, Rock Island & Pacific Railway Company to receive, transport, and deliver any beer or other fermented malt liquors, sold and consigned in Minnesota, Wisconsin, or Illinois by the complainants, the Hamm Brewing Company, the Heilman Brewing Company, and the Rock Island Brewing Company, or any other person similarly situated, to persons residing in the state of Iowa, who shall have purchased the liquor for their own lawful purposes and private consumption, whenever the purchaser shall in writing authorize the delivery of the liquor by the carrier to some designated person for the purpose of carrying it from the railway station to the residence of the purchaser, provided the writing certifies that the beer or fermented malt liquor is for the purchaser's own consumption.

After the granting of the temporary injunction, the state of Iowa intervened, alleging that shipments specified in the complainants' bill would be in violation of the Webb-Kenyon Law (Act Cong. March 1, 1913, c. 90, 37 Stat. 699 [Comp. St. 1916, § 8739]) of section 2419 of the Iowa Code of 1897, and sections 2421a-2421c of the Supplemental Supplement of the Iowa Code 1915. The essential parts of these acts are set out in the margin.

"If any

*

*

1 Section 2419 of the lowa Code of 1897: railway company

shall transport or convey to any person within this state any intoxicating liquors,

such company

shall, upon conviction, be tined in the sum of one hundred dollars.

The offense herein created shall be held committed and complete and to have been committed in any county in the state in which the liquors are received for transportation, through which they are transported, or in which they are delivered. Webb-Kenyon Law: The shipment or transportation

of

intoxi. cating liquor from one state

into any other state, which intoxicating liquor is intended,

any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state

is hereby prohibited." Section 2421 of the Supplemental Supplement of Iowa 1915: "(a) It shall be unlawful for any railroad company,

to carry any intoxicating liquor into the state or from one point to another within the state for the purpose of delivering, or to deliver same to any person, com

[ocr errors]
« SebelumnyaLanjutkan »