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ordered the defendant to be deported, to which the defendant excepted.
The opinion of the learned District Judge, a copy of which is given in the record, shows that the order of deportation was made because in his opinion the facts as found by the commissioner indicate that Liu Hop Fong did not come to the United States to study the English language and the English sciences as a student, and that such contention was a mere device to gain entrance into this country, and not in good faith to pursue studies as a student, and his real intent was to labor only; "and I am of the opinion,” says the learned judge, "that his entry under the certificate mentioned was a fraud upon the United States, and such certificate does not afford him protection.” He thereupon affirmed the finding and judgment of the commissioner. Subsequently, and after the adjournment of the term at which this order was made, a petition was filed for a new trial upon the record and affidavits submitted on behalf of Liu Hop Fong, and while the judge recognized that he had no further power over the proceedings after the adjournment of the court for the term, upon investigation adhered to his former opinion as to the order of deportation.
We need not be concerned with these proceedings after the term, for clearly the judge's authority over the case had ended. The question is here upon the record made in the original proceeding before him. Was the judge warranted in making the order of deportation? By the third section of the treaty with China of December 8, 1894 (28 Stat. 1210), it is provided:
“The provisions of this convention shall not affect the right at present enjoyed of Chinese subjects, being officials, teachers, students, merchants or travelers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein. To entitle such Chinese subjects as are above described to admission into the United States, they may produce a certificate from their government or the government where they last resided, vised by the diplomatic or consular
representative of the United States in the country or port whence they depart."
By 8.13 of the act of 1888 (25 Stat. 476), it is provided:
“That any Chinese person, or person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge or commissioner of any United States court, returnable before any justice, judge or commissioner of a United States court, or before any United States court, and when convicted, úpon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came."
By 8 3 of the act of May 5, 1892 (27 Stat. 25), it is provided:
“That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States, unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States."
Section 13 of the act of 1888 (25 Stat. 476) also provides that any Chinese person convicted before the commissioner of the United States court may within ten days of such conviction appeal to the judge of the District Court for the district.
In this case the Chinaman did prosecute his appeal from the commissioner to the District Judge. The statute is curiously silent as to how the appeal is to be heard; it says nothing as to what papers are to be filed or as to what testimony shall be given. In our view, in giving the Chinaman an appeal, the law contemplates that he shall be given the right of a hearing de novo before the district judge before he is ordered to be deported. It is a serious thing to arrest a Chinaman, who, as in this case, has been in this country a number of years, lawfully admitted upon a certificate complying with the treaty, and order his deportation without giving him a full oppor
tunity to assert his rights before a competent court. There being no provision of the statute that the hearing shall be upon a transcript of the proceedings before the commissioner, we think when a party demands it Congress intends he shall have the right to a hearing and judicial determination before the District Judge.
In the case of Ah How v. United States, 193 U. S. 65, it was assumed that the judge who tried the case upon appeal did so solely upon the commissioner's report, and heard no witnesses. In Tom Hong v. United States, 193 U. S. 517, the commissioner made a finding, which was made part of the record by order of the District Court. In the present case the record shows that there was before the District Court the transcript of the proceedings herein before set out as having taken place before the commissioner on December 29, 1904; and then, without the order of the court, an additional and separate finding of the commissioner appears to have been filed. We are not aware of any statute that gives the commissioner a right to make up and file such additional finding; he had made and filed a certified transcript in the case, and there ended his authority in the matter. There was no order, as in the Tom Hong case, making the commissioner's findings part of the record. There was no consent to a hearing of the case upon such additional findings, and the case presented to the District Judge embraced the student's certificate hereinbefore referred to, and a statement that witnesses were examined without any findings of facts or the giving of any testimony. On this state of the record we are of the opinion that the court had no authority to order the deportation of the Chinaman.
The 'treaty with China provides that officials, teachers, students, etc., shall have the privilege of coming to and residing in the United States (Article 3, Treaty of December, 1894, above referred to), and further provides:
"To entitle such Chinese subjects as are above described to admission into the United States, they may produce a certificate from their government or the government where they
last resided, viséd by the diplomatic or consular representative of the United States in the country or port whence they depart.”
When this young man entered a port of the United States in July, 1899, he presented such a certificate, duly issued and vised by the consular representative of the United States. Upon application for admission this certificate is prima facie evidence of the facts set forth therein. 22 Stat. 58, 86; 33 Stat. 428. This certificate is the method which the two countries contracted in the treaty should establish a right of admission of students and others of the excepted class into the United States, and certainly it ought to be entitled to some weight in determining the rights of the one thus admitted. While this certificate may be overcome by proper evidence and may not have the effect of a judicial determination, yet being made in conformity to the treaty, and upon it the Chinaman having been duly admitted to a residence in this country, he cannot be deported, as in this case, because of wrongfully entering the United States upon a fraudulent certificate, unless there is some competent evidence to overcome the legal effect of the certificate. In this record we can find no competent testimony which would overcome such legal effect of the certificate, and the plaintiff in error was therefore wrongfully ordered to be deported. The judgment of the District Court is reversed, and the cause
remanded to that court with directions to discharge the plaintiff in error from custody without prejudice to further proceedings.
Opinion of the Court.
BOGARD v. SWEET.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF
No. 156. Submitted March 6, 1908.- Decided April 27, 1908.
A.decree of Supreme Court of Oklahoma cancelling a deed given to de
fendant below in furtherance of a scheme of development of property
which had been abandoned, affirmed on the facts. 17 Oklahoma, 40, affirmed.
The facts are stated in the opinion.
Mr. John W. Shartel, Mr. James R. Keaton and Mr. Frank Wells for appellants.
Mr. Charles M. Thacker for appellees.
MR. JUSTICE HARLAN delivered the opinion of the court.
There can be no doubt upon this record, confused though it be, as to the real nature of the present case.
The substantial facts are these: In December, 1890, one Sweet, claiming to be owner of certain town lots covered by a patent to him from the State of Texas, of date December 10, 1885, conveyed the same by deed (his wife uniting with him) to J. G. Bogard and other named persons. The lots were in the town of Mangum, which was in what is now Greer County, Oklahoma. The deed, which was recorded, was with warranty and absolute upon its face. On the same day, at the same time, a written agreement was entered into between, substantially, the same parties. That agreement referred in terms to the deed and bound the grantees therein to sell the lots, collect the proceeds of sale, and out of the gross receipts in cash received and collected on such sales, as soon as collected, pay over two-thirds to Sweet and his wife. The agree