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of November 3, 1893 (28 Stat. at L. 7, chap. | the conclusion of the hearings the commis14, U. S. Comp. Stat. 1901, p. 1322), which sioner made an order finding each of the ap defines a merchant as "a person engaged in buying and selling merchandise at a fixed pellants a Chinese laborer, without a certifiplace of business, which business is concate of registration as required by law, and ducted in his name, and who, during the not a merchant doing business within the time he claims to be engaged as a merchant, meaning of the act of 1892, as amended 1893, does not engage in the performance of any and not lawfully entitled to remain in this manual labor except such as is necessary in country. the conduct of his business as such merchant."

In each of the cases the commissioner, in addition to the judgment just recited, filed a finding, which was made part of the record by order of the district court, as follows:

2. Orders for the deportation of Chinese laborers, made on the sole ground that they had failed to show that they were bona fide merchants within the meaning of the Chinese exclusion act of May 5, 1892 (27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319), In the Matter of Lee Kit, Tom Hong, and 2, as amended by the act of November 3, 1893 (28 Stat. at L. 7, chap. 14, U. S. Comp. Stat. 1901, p. 1322), at the time registra tion was required, will be reversed by the Federal Supreme Court, where that court is

satisfied, from an examination of the record, that the testimony did establish that fact.

[Nos. 310, 311, 313.]

Tom Dock.

Before B. L. Benedict, U. S. commissioner. In these three cases it is urged, on one side, that the decision of the circuit court of appeals of this circuit, in the case of United States v. Pin Kwan, requires the commissioner to decide that these three Chinese persons were not merchants within the meaning of the statute in 1894, and that,

Argued January 12, 1904. Decided March being now laborers without certificate of

A

21, 1904.

PPEALS from the District Court of the United States for the Eastern District of New York to review an order which affirmed an order made by a United States commissioner, directing the deportation of Chinese laborers from the United States because found therein without certificates of registration. Reversed and appellants discharged.

Statement by Mr. Justice Day:

These cases were considered together and are appeals from an order entered in the district court of the United States for the eastern district of New York, affirming an order*made by a United States commissioner, directing the deportation of the appellants from the United States to China upon the ground that they were found within this country without certificates of registration, as required by the act of May 5, 1892 [27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319], as amended November 3, 1893. 28 Stat. at L. 7, chap. 14, U. S. Comp. Stat. 1901, p. 1322.

The complaint charges that the appellants, being Chinese laborers, not entitled to remain in this country without certificates of registration, did wilfully and knowingly fail to obtain the certificates required by law, and, having unlawfully come within the United States, were found without certificates of registration within the jurisdic tion thereof, in the eastern district of the state of New York.

Testimony was heard in the cases, and at

residence, they must be deported. On the other side it is urged that the decision of the court in that case was only that the merchant's certificate that Pin Kwan had was not the certificate required by law, and could not be effective to allow his remaining here, and that the discussion of the effect and weight of evidence which the court itself had said it was error to admit (a certificate being the sole proof admissible) goes merely to show what the court thought of the evidence in that case, which differed from the present one. Admitting the distinction, I do not think the United States commissioner is at liberty to disregard carefully expressed language of the circuit court of appeals for the circuit, even though a dictum of the court as to the precise question before it. The proofs furnished in this case are sufficient to show that these three persons were engaged in business rather than in manual labor in 1894, but not to show a real interest of each in the business as partners; they do not, to my mind, clearly establish facts which would bring these persons within the statute as merchants. It follows that an order for deportation for each one must be made.

I certify the foregoing to be a true copy of an original decision made by me in the cases of United States v. Lee Kit, United States v. Tom Hong, and United States v. Tom Dock, upon application for orders of deportation of the said Lee Kit, Tom Hong, and Tom Dock, made on the 18th day of December, 1902, and remaining on file in my B. Lincoln Benedict, U. S. Comm.

office.

[L. S.]

519

Messrs. Terence J. McManus, Frank 8. | act specifically defines what is meant by a Black, Max J. Kohler, and Russell H. Lan- "laborer," that only such as come within dale for appellants.

Solicitor General Hoyt for appellee.

the statutory provision as "laborers" are liable to deportation upon an affirmative finding of this fact as to the person appre

Mr. Justice Day, after making the fore-hended. going statement, delivered the opinion of the court:

On the part of the government, it is contended that when a Chinese laborer is apprehended under this act and found without a certificate, and claiming to have been

tion, he is subject to deportation unless it is affirmatively shown, to the satisfaction of the commissioner or court, that he was a merchant, as defined by the statute, during such period of registration.

The contention of the appellants that their right to remain in the United States is enlarged by the treaty with China of De-a merchant during the period of registracember, 1894, considered with § 1 of the act of April 29, 1902, chap. 641, 32 Stat. at L. 176,1 continuing all laws then in force so far as the same are not inconsistent with treaty obligations, in its effect upon the acts of 1892, as amended in 1893, is disposed of by the case of Ah How v. United States (decided at this term), 193 U. S. 65, ante, 357, 24 Sup. Ct. Rep. 357.

For the first time in the history of legislation having for its purpose the exclusion of certain Chinese from the country, or their deportation when here in violation of the statutes of the United States, and the admission of certain others to the country, or giving the right to remain, Congress, by the act of May, 1892, as amended November 3, 1893, defined those theretofore designated generally as merchants or laborers:

"Sec. 2. The words 'laborer' or 'laborers,' wherever used in this act, or in the act to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation.

"The term 'merchant,' as employed herein and in the acts of which this is amendatory, shall have the following meaning, and none other: A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who, during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor except such as is necessary in the conduct of his business as such merchant." It is contended by the appellants that as by 6 of the act as amended November 3. 1893, it is made the duty of certain Chinese laborers within the limits of the United States to apply to the collector of their respective districts within six months after the passage of the act for a certificate of registration, and, in default of compliance with the terms of the act, to be subject to arrest and deportation, unless, for certain reasons given in the statute excusing them, they have been unable to procure the certificate required by law; and as § 2 of the same U. 8. Comp. St. Supp. 1903, p. 189.

We do not find it necessary to determine this question in the cases now before us, for, in the opinion of the court, the testimony shows that the appellants were "merchants" within the definition laid down by the law. The testimony shows, without contradiction, and by disinterested witnesses other than Chinese, that the appellants had been in this country for periods varying from ten to thirty years. That in the years from 1891 to 1895 they were carrying on a Chinese grocery in New York, known as the Kwong Yen Ti Company. In that period they bought and sold groceries, kept books of account, and had articles of partnership. It is a fact that the testimony does not disclose, as to any of them, that the business was conducted in his name, as the literal interpretation of the law would seem to require, but it was carried on in a company name, which did not include that of any of the partners. The fact of buying and selling at a fixed place of business in a real partnership was established without contradiction.

It is true that after the lapse of so many years the appellants, when taken before the commissioner, were unable to produce the books or articles of copartnership of the firm. But some allowance must be made for the long delay in their prosecution by the government, and the natural loss of such testimony years after the firm's transac tions were closed.

The commissioner was doubtless influenced by the intimation in the Pin Kwan Case, 40 C. C. A. 618, 100 Fed. 609, to the effect that the statutory requirements as to the conduct of the business in the name of the parties necessitated the appearance of the name in the style in which the business was conducted. But this would be too narrow a construction of the statute. The purpose of the law is to prevent those who have no real interest in the business from making fraudulent claims to the benefits of the act as merchants. The interest in the business must be substantial and real and in the

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2.

name of the person claiming to own it, but
the partner's name need not necessarily ap-
pear in the firm style when carried on, as
is usual among the Chinese, under a com-
pany name which does not include individ-
ual names. The main purpose is to require
the person to be a bona fide merchant, hav-
ing, in his own name and right, an interest
in a real mercantile business, in which he
does only the manual labor necessary to the
conduct thereof. This conclusion has been
reached in a number of Federal cases, in
which the matter has been given careful con-
sideration. Perhaps the leading one was de-
cided by the circuit court of appeals for the
ninth circuit (Lee Kan v. United States,
10 C. C. A. 669, 15 U. S. App. 516, 62 Fed.
914), the opinion being delivered by Mr.
Justice McKenna, then circuit judge, in
which the subject was so fully considered as
to leave little to be added to the discussion.
See also Wong Ah Gah v. United States, 94
Fed. 831; Wong Fong v. United States, 23
C. C. A. 110, 44 U. S. App. 674, 77 Fed. 168. | Argued January 20, 1904.
It is true that the findings of the commis-
sioner and in the district court in cases of

to be furnished by a gas company availing it-
self of the general power to absorb its rivals
conferred upon gas companies by Illinois act
of June 5, 1897, was not precluded by the pro-
vision of 11 of that act that such corpora
tion should not exceed the rate it had been
charging the year immediately preceding the
acquisition of the absorbed corporations, since
such provision was not intended to fix, and
did not fix, a rate unalterable by either party,
but simply a rate which the consolidated com-
panies could not exceed.

Any contract exemption from state regulation of the price of gas, contained in the charter of a gas company, does not extend to the plants of, and territory occupied by, certain other gas companies, not possessing such immunity in their own right, when absorbed by the former company under the general power of consolidation and merger conferred upon gas companies by Illinois act of June 5, 1897, which provided that the consolidated corporation should be subject to the legal obligations of the companies absorbed.

[No. 132.]

1904.

Decided April 4,

APPEAL from the Circuit Court of the

firmed.

this character should ordinarily be followed in this court, and will only be reconsidered United States for the Northern District when it is clear that an incorrect conclusion of Illinois to review a decree dismissing a has been reached. Chin Bak Kan v. United bill to enjoin the enforcement of a municipal States, 186 U. S. 193–201, 46 L. ed. 1121-ordinance regulating the price of gas. Af1126, 22 Sup. Ct. Rep. 891. But in the present case no new matter seems to have been admitted in the district court, and the finding made by the commissioner as to these appellants is of an uncertain nature when the judgment is read in connection with the special finding filed by that officer and made part of the record in each case, in which he says: "The proofs furnished in

this case are sufficient to show that these three persons were engaged in business rather than in manual labor in 1894."

See same case below, 114 Fed. 384.
The facts are stated in the opinion.
Messrs. William D. Guthrie, James F.
Meagher, and William F. Sheehan for appel-
lants.

Messrs. Granville W. Browning and
Edgar Bronson Tolman for appellee.

*Mr. Chief Justice Fuller delivered the opinion of the court:

persons

This was a bill to restrain the city of ChiIn this state of the record an examination cago from putting in force a general ordithereof satisfies us that the appellants ad-nance passed October 15, 1900, providing duced testimony which established that they were bona fide "merchants" within the meaning of the law at the time registration was required of laborers by the act of Congress, and. as the orders of deportation were made on the sole ground that appellants failed to show that fact, the judgments are reversed and appellants discharged.

(194 U. S. 1)
PEOPLE'S GASLIGHT & COKE COM-
PANY of Chicago, Appt.,

v.

CITY OF CHICAGO.

that corporations, companies, or manufacturing, selling, and distributing gas in the city of Chicago for illuminating or fuel purposes should not charge individual consumers more than 75 cents per thousand cubic feet, and providing penalties for violation of its provisions. The bill was demurred to, and an opinion delivered on hearing on demurrer. 114 Fed. 384.

The opinion took a wider range than the bill as framed called for, because of certain facts not therein set forth, but which were admitted on the argument, and accordingly it was suggested that the bill be amended to bring in these facts, and, this having been done, the demurrer was renewed to the amended bill, whereupon, after argument, the court gave an additional brief opinion 1 A reduction by the state of the price of gas (which appears in the record), sustained

State regulation of gas rates-contract exemption-extension to consolidated corpo

ration.

the demurrer, and dismissed the bill, as amended, for want of jurisdiction. Subsequently it was stipulated and agreed by and between the parties that the decree as entered did not correctly recite what was intended by the court, and that it should be amended by striking out the words "for want of jurisdiction," and inserting in lieu thereof the words "upon the merits as to the alleged contract rights of the complainant, but without prejudice to any other suit in respect to the question of power of the city council under the laws of the state of Illinois." An order was then entered by the court, amending its previous decree nunc pro tunc in the particulars named.

to compel the said company to furnish gas at a less rate than $3 per thousand feet.”

In 1870 a new constitution of the state of Illinois was adopted, providing that no law "making any irrevocable grant of special privileges or immunities shall be passed" (art. II., § 14); that the general assembly should not pass local or special laws "granting to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise whatever” (art. IV., § 22); and that no corporation should be "created by special laws, or its charter extended, changed, or amended, except those for charitable, educational, penal, or reformatory purposes, which are to be and remain under the patronage and control of the state; but the general assembly shall provide, by general laws, for the organization of all corporations hereafter to be created" (art. XI. § 1).

The facts presented by the amended bill were these: The People's Gaslight & Coke Company was incorporated by a special act of the general assembly of Illinois, approved February 12, 1855, creating it a corporation, with the usual powers and liabilities, with a June 5, 1897, an act was passed "in relacapital stock not to exceed $500,000, and tion to gas companies," which authorized with power to manufacture and sell gas in and empowered gas companies to sell, transthe city of Chicago and "to lay pipes for fer, convey or lease their real and personal the purpose of conducting the gas in any of property, rights, franchises, and privileges, the streets or avenues of said city, with the in whole or in part, to any other gas comconsent of the city council," and by the 4th pany doing business in the same city, town, section it was expressly provided that the or village, and provided that by complying company should furnish and supply to the with the provisions of the act, gas compacity, for its public uses, at the election of nies doing business in the same city, town, the proper authorities of the city, "a suffi- or village might consolidate and merge into cient supply of gas, at a rate not exceeding a single corporation, which should be one of $2 per thousand feet, and the inhabitants of said merging and consolidating corpora said city at a rate not exceeding $2.50 per tions. "The companies, parties to the thousand feet." The city council passed an agreement or agreements which provide for ordinance, August 30, 1858, granting the com- consolidation and merger shall thereupon be pany permission and authority "to lay their and are hereby declared to be consolidated gas mains, pipes, feeders, and service pipes in and merged into the one corporation speciany of the streets, avenues, highways, pub-fied in such agreement or agreements." Laws lic parks, or squares throughout said city, Illinois 1897, p. 179, §§ 2, 8. subject at all times, however, to the resolutions and ordinances of the common council of said city." The act of 1855 was "§ 9. Any corporation purchasing or leas amended February 7, 1865, so as to allowing the real and personal property of any an indefinite increase of the capital stock, and by § 3 of this act all the corporate powers of the corporation were vested in a

board of directors and such officers and

The 9th and 11th sections read as follows:

other company or companies, as provided for authorized by § 2, shall be subject to and in § 1, or any consolidated corporation, as shall perform, for each of the companies so agents as the board should appoint, with the legal obligations now resting upon each entering into said agreement or agreements, power to the board to "adopt such by-laws, of them, respectively, under their respective rules, and regulations for the government of charters and ordinances, except where the said corporation and the management of its provisions thereof conflict with the exercise affairs and business as they may think prop-of the powers herein granted, in the same er, not inconsistent with the laws of this state," the section continuing and concluding, "and the 4th section of said act is hereby repealed; but ten years after the passage of this act the common council of the city of Chicago may, by resolution or ordinance, regulate the prices charged by said company for gas; but said common council of the city of Chicago shall, in no case, be authorized

manner and to the same extent as if the

companies had remained individual and distinct; and such performance by said corporation so purchasing or leasing, or by such consolidated corporation, shall be held and considered as the performance by each of the respective companies so selling, leasing, or consolidating, of the legal obligations theretofore resting upon each of them re

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spectively: Provided, however, that noth- since the acquisition of the plants and proping in this act shall be construed as extin-erty of those corporations that complainant guishing said companies entering into the had uniformly charged the same net rate agreement or agreements mentioned in this or price for gas sold by it in the city, which act, or annulling or impairing any of their gas was better in quality and of higher canrespective franchises, licenses, or privileges, dle power than the gas theretofore sold by but they shall severally be regarded as still the companies acquired; and complainant subsisting, so far as their continuance for averred, as matter of law, that the price or the purpose of upholding any right, title, or rate thus fixed was a fixing and regulating interest, power, privilege, or immunity ever by the state of the price or rate to be exercised or enjoyed by any of them, may charged by complainant for gas supplied be necessary for the protection of their re- subsequent to the acquisition of said other spective creditors or mortgagees, or any of companies. them; the separate exercise of their respective powers, and the separate enjoyment of their separate privileges and immunities, being suspended until the protection of such creditors or mortgagees shall require their resumption, when such suspension shall cease, so far as, and for such time as, the protection of such creditors or mortgagees may require."

"§ 11. Any corporation purchasing or leasing the property of any company or companies, or into which any company or companies are consolidated and merged under this act, shall be, at the time of availing itself of or accepting the benefits of this act, in the actual business of furnishing gas to consumers; and shall be subject to the following provisions:

"Such corporation shall not increase the price charged by it for gas of the quality furnished to consumers during any part of the year immediately preceding such purchase or lease or such consolidation and

merger.

"Such corporation shall furnish gas to consumers as good in quality as it furnished previous to such purchase or lease or such

consolidation and merger."

The People's Gaslight & Coke Company

under this act became consolidated with some ten other gas companies, most of which were organized under general laws passed in pursuance of the Constitution of 1870. One of them, the Chicago Gaslight & Coke Company, was incorporated by special act of February 12, 1849, amended February 9, 1855, but this contained no restriction on the right of the general assembly or the city to regulate the price of gas from time to time.

or

The bill also set forth an agreement made between the city and the People's Gaslight & Coke Company, July 20, 1899, which recited that agreements had theretofore subsisted between the city and the People's Company, and between the city and certain other gas companies, which companies subsequently became merged into the People's Company, and provided for a continuance of the lighting of the streets on the same terms as it had been done, and for the payment by the People's Company to the city of a certain percentage of the gross receipts of the People's Company from the sales of gas during 1899, including therein the receipts from the operation of the properties of each of the gas companies consolidated with the People's Company, and for the payment by the city of amounts due or to become due to the People's Company or confession of judgment for amounts remaining unpaid; and the bill further set forth certain orders of the city between August 5, 1897, and March 11, 1901, for the laying of in the streets and avenues of the city. Cerpipes and mains by the People's Company tain mortgages were likewise referred to and it was alleged that bonds thereunder had been sold to parties who purchased the same in the belief that the city was prohibited by its charter from compelling the People's Company to furnish gas at a less rate than $3 per thousand cubic feet.

The bill also averred that the People's Company, prior to the consolidation, distributed gas chiefly in the west division of the city, although its pipes and mains extended into the south division, and that the other companies, or nearly all them, severally had plants and were engaged in manufacturing and distributing gas in various other sections of the city.

The bill quoted from the 11th section of the act of 1897 the clause in reference to the increase of price for gas of the quality furnished consumers during any part of the On March 5, 1900, the city council passed year immediately preceding purchase an ordinance which provided "that no corpolease, or consolidation and merger, and al- ration, company or companies, firm or perleged the fact to be that during the year im- sons manufacturing, selling, supplying, or mediately preceding the acquisition by com- distributing gas in the city of Chicago for plainant of the various other gas compa-illuminating or for fuel purposes shall nies, complainant charged the net rate or charge, exact, demand, or collect from any price of $1 per thousand cubic feet, and consumer thereof more than the sum of sev

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