APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.
MR. JUSTICE HARLAN delivered the opinion of the court.
Lim Lung, on behalf of the appellant, Lem Moon Sing, presented to the District Court of the United States for the Northern District of California an application in writing for a writ of habeas corpus, directed to one D. D. Stubbs, and to the collector of the port of San Francisco, requiring them to produce the body of the appellant and abide by such order as the court might make in the premises.
The grounds set forth in the application for the writ were substantially as follows:
The appellant was a person of the Chinese race, born in China, and never naturalized in the United States.
At and before the passage of the general appropriation act of Congress, approved August 18, 1894, he was a Chinese merchant having a permanent domicil in the United States at San Francisco and lawfully engaged in that city in mercantile pursuits, and not otherwise. That domicil had never been surrendered or renounced by him.
On the 30th day of January, 1894, while conducting his business as a merchant at San Francisco, being a member of the firm of Kee Sang Tong & Co., wholesale and retail druggists in that city, he went on a temporary visit to his native land, with the intention of returning and of continuing his residence in the United States, in the prosecution of that business. He was so engaged for more than two years before his departure for China, and during that time performed no manual labor except as was necessary in the conduct of his business as a druggist.
During his temporary absence in China the appropriation act of August 18, 1894, was passed. That act contained these provisions:
"Enforcement of the Chinese Exclusion Act: To prevent unlawful entry of Chinese into the United States, by the appointment of suitable officers to enforce the laws in relation thereto, and for expenses of returning to China all Chinese persons found to be unlawfully in the United States, including the cost of imprisonment and actual expense of conveyance of
Chinese persons to the frontier or seaboard for deportation, and for enforcing the provisions of the act approved May fifth, eighteen hundred and ninety-two, entitled 'An act to prohibit the coming of Chinese persons into the United States,' fifty thousand dollars.
"In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or custom officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury." Act of August 18, 1894, c. 301, 28, Stat. 390.
The appellant returned to the United States, November 3, 1894, on the steamer Belgic, belonging to the Occidental and Oriental Steamship Company, of which D. D. Stubbs was secretary and manager. Upon his arrival here he applied to John H. Wise, collector of customs at San Francisco, to be permitted to land and enter the United States on the ground that he was formerly engaged in this country as a merchant. He submitted to the collector the testimony of two credible witnesses other than Chinese, showing that he conducted business as a merchant here for one year previous to his departure, as above stated, from the United States, and that during that period he was not engaged in the performance of any manual labor except such as was necessary in conducting his business as a merchant. His application to enter the United States was denied, and consequently he was detained, confined, and restrained of his liberty by Stubbs as secretary and manager of the steamship company.
In addition to the above facts, the application for the writ of habeas corpus alleged that Lem Moon Sing had not been apprehended and was not detained by virtue of the judgment, order, decree, or other judicial process of any court, or under any writ or warrant, but under the authority alleged to have been given to the collector of the port of San Francisco by the above act of August 18, 1894; that Lem Moon Sing was not at the date of the passage of that act nor for more ...