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and its proceedings and judgment, declaring him a citizen of the United States, are absolutely null and void, for want of jurisdiction, and cannot be recognized in this or any other court. Freem. Judgm. $ 117. The certificate of naturalization, which the detained presents to this court as evidence of his status as a citizen, is void on its face. There are no presumptions in favor of a judgment, where the powers of the court are special (Dynes v. Hoover, 20 How. 65), or where the law is such that the court could not, under any circumstances, have jurisdiction (Withers v. Patterson, 27 Tex. 491; Freem. Judgm. § 120; Works, Jur. pp. 168, 169, § 26). As is tersely stated by the last writer, in his able work, "a void judgment is no judgment.” See, also, Murray v. Surety Co., 70 Fed. 341, 346, a decision of the circuit court of appeals for this circuit (Ninth), and the cases there cited.

1 The passport issued by the department of state to Gee Hop, as a citizen of this country, does not avail him in this proceeding, nor give efficacy and validity to the void judgment of the state court of New Jersey. It is, at most, but prima facie evidence of the facts recited, and is not evidence in a court of justice that the person to whom it was given was a citizen of the United States. Urtetiqui v. D'Arcy, 9 Pet. 692. In that case, Mr. Justice Thompson used the following language respecting the legal effect of passports. He said:

"Upon the general and abstract question whether the passport, per se, was legal and competent evidence of the fact of citizenship, we are of opinion that it was not. There is no law of the United States in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effect. It is understood, as matter of practice, that some evidence of citizenship is required by the secretary of state before issuing a passport. This, however, is entirely discretionary with him. No inquiry is instituted by him to ascertain the fact of citizenship, or any proceedings had that will in any manner bear the character of a judicial inquiry. It is a document which, from its nature and object, is addressed to foreign powers, purporting only to be a request that the bearer of it may pass safely and freely, and is to be considered rather in the character of a political document, by which the bearer is recognized, in foreign countries, as an American citizen, and which, by usage and law of nations, is received as evidence of the fact. But this is a very different light from that in which it is to be viewed in a court of justice, where the inquiry is as to the fact of citizenship. It is a mere ex parte certificate; and if founded upon any evidence produced to the secretary of state, establishing the fact of citizenship, that evidence, if of a character admissible in a court of justice, ought to be produced upon the trial, as higher and better evidence of the fact."

While it is true that, since this decision was rendered (1835), congress, by the act of May 30, 1866, and reproduced in the Revised Statutes as sections 4075, 4076, 4077, and 1078, has provided for the granting and issuing of passports, yet these provisions do not alter, in the least, the legal effect of passports as stated by Mr. Justice Thompson. Indeed, section 4076 provides:

“No passport shall be granted or issued to or verified for any other persons than citizens of the United States."

The conclusion is inevitable, therefore, that, under any phase of the question as here presented, Gee Hop is not a citizen of the United

States, and the judgment of the court of common pleas for the county of Camden, state of New Jersey, was and is void. This being 80, the detained, not coming within any of the privileged classes who are entitled to return or enter this country, must be remanded. The recommendation of the special referee is hereby confirmed, and Gee Hop ordered to be remanded.


(District Court, S. D. California. December 2, 1895.) 1. DECISION ON HABEAS CORPUS-CONCLUSIVENESS.

A judgment of a federal court discharging on habeas corpus a Chinese immigrant from detention on board the vessel and permitting her to land

is conclusive as to her right to come into the country. 2. EXCLUSION OF IMMIGRANT-DECISION OF COLLECTOR.

The decision of a collector denying an alien admission into the country is final unless reversed on appeal to the secretary of the treasury. 8. HABEAS CORPUS-RIGHT TO WRIT.

An immigrant held in custody on board a vessel by the master under directions from the customs authorities is "in custody under or by color of the authority of the United States," within the meaning of Rev. St.

$ 753, authorizing the issuance of a writ of habeas corpus in such a case. 4 SAME-CHINESE IMMIGRANTS.

The jurisdiction of the federal courts to issue the writ in such a case

is not taken away by the Chinese restriction act. 6. JUDGMENT---COLLATERAL ATTACK.

A judgment is not open to collateral attack because based on a fraudulent instrument or perjured testimony.

George J. Denis, U. S. Atty.
Marble & Phibbs, for defendant.

WELLBORN, District Judge. This is an appeal from an order of deportation made by United States Commissioner Van Dyke. The affidavit on which the warrant of arrest was issued by said commissioner charges that on the 16th of June, 1893, "one Chung Shee (a Chinese woman) did come into the United States from a foreign place, and, having come, has remained within the United States; that the said Chung Shee has been found and now is unlawfully within the United States, and that at all the times herein mentioned the said Chung Shee was and is a Chinese laborer,” etc.

The evidence adduced upon the trial before me establishes the following facts:

First. The defendant is a woman, 20 years of age, and a subject of the emperor of China.

Second. About June, 1893, the defendant, under the name of Chung Shee, arrived at the port of San Francisco, Cal., on the steamer Peru, from China, and sought admission to the United States on the ground that she was the wife of a Chinese merchant then living in said city of San Francisco, and so testified upon the proceedings below and in this paragraph mentioned. After an examination by the collector at that port, she was refused permission to land. A writ of habeas corpus was subsequently, on July 21, 1893, issued by Judge Morrow.


On the 31st of the same month a report was filed in the case by a special referee, recommending that the prisoner be remanded. On the 1st of August, 1893, an order, by Judge Hawley, was made, directing the return of Chung Shee to the steamship Peru, to be hence taken to Hong Kong, China. On the 10th of August, 1893, at San Francisco, the United States marshal made upon said order the following return: "I hereby certify that I executed the within order on the 10th day of August, 1893, by placing the within-named Chung Shee on board the steamship Rio De Janeiro, bound for the port of Hong Kong.” With reference to the identity of Chung Shee and this defendant, there has been some conflict of testimony, but I am satisfied, that the defendant is the person who, under the name of Chung Shee, sought and was denied landing at San Francisco, as testified to by the witnesses for the government.

Third. On January 30, 1894, a petition for habeas corpus was presented to the Honorable C. B. Bellinger, United States district judge for the district of Oregon, by the defendant, under the name of Lum Lin Ying, alleging:

“That the facts concerning the detention of your petitioner are that T. J. Black is collector of customs of the United States for the district of Oregon. That the Signal is a steamship plying between the port of Victoria, in British Columbia, and the port of Portland, in the United States. That the said ship the Signal is now under the control and in the possession of said T. J. Black as such collector. That your petitioner is the wife of a Chinese merchant by the name of Chung Chew, who is a Chinese merchant, as aforesaid, doing business in the general merchandise business at No. 61 Second street, in said city of Portland, Oregon; and he is not a Chinese laborer. That said Chung Chew has been for more than three years last past lawfully in the United States, engaged in his said business as such merchant, and has the right, under the laws of the United States and of the treaty with the empire of China and the United States, to remain in the United States. That said Lum Lin Ying, being desirous of joining her husband, Chung Chew, in the United States, came to the United States as a passenger on board the said steamer Signal. That Pendergast, the master of said steamship Signal, acting upon the decision of said T. J. Black that said Lum Lin Ying had no right to land in the United States, declined and refused, and still declines and refuses, to permit your petitioner to land in the United States from said steamship Signal, but restrains her of her liberty on board said ship. That on the 30th day of January, 1894, said T. J. Black had a hearing before him in regard to the right of your petitioner to land in the United States, and then ard there decided that your petitioner had no right to land, and rejected her claim that she had such right, and upon said decision said Pendergast refused and refuses to allow your petitioner to land, as above set forth.”

On this petition the writ therein applied for was issued, and on the 2d of February the judgment of the court was duly rendered, discharging the petitioner from the detention and restraint complained of in said petition, and thereupon she was permitted to land. The opinion of Judge Bellinger is reported in 59 Fed. 682. Chung Chew, the alleged husband of the defendant, was at the time a merchant, residing at Portland, Or. For four or five months thereafter, Chung Chew and the defendant lived together as husband and wife in said city, when they moved to Los Angeles, Cal., where they resided up to the time of Chung Chew's death, which occurred about the latter part of October, 1894. Since the date last named, the de

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fendant, claiming to be the widow of Chung Chew, has continuously resided in Los Angeles.

My opinion is that the judgment of the district court of Oregon is conclusive of the present case. On this subject the rule of law is thus stated by an eminent text writer:

“The writ of habeas corpus may be resorted to (1) by or on behalf of some person who is imprisoned or otherwise deprived of his liberty; or (2) on behalf of some person.

In cases of the first class it is well settled that the remanding to custody of the person claimed to be illegally imprisoned is not a decision to which the principle of res adjudicata is applied. A party may apply successively to every court having jurisdiction to grant the writ for his discharge, until he exhausts the entire judicial authority of the state.

If, on the other hand, the prisoner is discharged froin custody, this is an adjudication that at that time he was entitled to his liberty, and is conclusive in his favor, should he be again arrested, unless some authority can be shown for holding him, which did not exist at the time of his discharge." 1 Freem. Judgm. § 324.

Again, it has been held that in proceedings upon habeas corpus the determination of the court upon the facts has the effect of a verdict of a jury. Bonnett v. Bonnett, 61 Iowa, 199, 16 N. W. 91. Indeed, the authorities without exception seem to hold that when a person has been discharged upon habeas corpus the issues of law and fact involved are res adjudicata, and the person so discharged cannot, for the same cause, be again lawfully arrested. Church, Hab. Corp. § 386; Ex parte Jilz, 64 Mo. 205; In re Crow, 60 Wis. 349, 19 N. W. 713; Yates' Case, 6 Johns. 337. On this point the government contends that "in the federal courts the doctrine of res judicata is not applicable to a decision in a habeas corpus proceeding," and cites as authorities Ex parte Kaine, 3 Blatchf. 5, Fed. Cas. No. 7,597, and Ex parte Cuddy, 40 Fed. 65. These cases, however, so far from sustaining, are against, the government's contention. In the first the court, after declaring that in proceedings upon a writ of habeas corpus the federal courts follow, not the laws and regulations of the states, but the common law of England, proceeds thus:

"That, according to that system of laws, so guarded is it in favor of the liberty of the subject, the decision of one court or magistrate upon the return to the writ, refusing to discharge the prisoner, is no bar to the issuing of a second or third or more writs by any other court or magistrate having jurisdiction of the case.”

Thus it will be seen from this opinion that it is only where the prisoner is remanded that the decision of the court is not final. The same may be said of Ex parte Cuddy, supra. From the opinion of Justice Field in this last case the following quotation is made in the government's brief:

"The doctrine of res judicata was not held applicable to a decision of one court or justice thereof; the entire judicial power of the country could thus be exhausted."

The latter part of this quotation would be meaningless, except upon the idea that Justice Field was discussing a case wherein the prisoner was remanded. The same is true of the opinion of the court in Re Perkins, 2 Cal. 430, cited in the government's brief. While, therefore, these decisions do not expressly so hold, the implication

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from them is unavoidable that where, on'a writ of habeas corpus, the prisoner is discharged, the decision is a final determination in his or her favor.

The further argument of the government in this connection is (page 5 of its brief) that the decision of a collector denying an alien admission into this country is similar to an order, upon preliminary examination, discharging or committing a person accused of crime. With this argument I cannot agree. The order of a committing magistrate does not purport to determine the question of innocency or guilt, and therefore the discharge of the accused, whether at the preliminary examination or a review upon habeas corpus, does not, of course, bar subsequent inquiry, indictment, or trial. It was to this situation that the supreme court of South Carolina referred in the case of State v. Fley, 2 Brev. 338, in the quotation made at page 6 in the government's brief, where the court declare that it would be monstrous to say that the discharge of a prisoner upon habeas corpus shielded him from subsequent prosecution. The determination, however, of an alien's claim to enter the United States is wholly different. When the power and duty of so determining are committed to any officer, no matter whether such officer belongs to the executive or judicial branch of the government, the decision of such officer is an adjudication of the right involved, namely, the right of the alien to enter the country, and such adjudication is final, unless the law expressly or impliedly provides for an appeal from or review of the decision. And this is the doctrine of the case which the government invokes to the support of its argument. In re Day, 27 Fed. 678. In that case, the court says:

“The provisions above quoted manifestly impose upon the commissioners the duty of determining the facts upon which the refusal of the right to land depends. The general doctrine of the law in such cases is that, where the determination of the facts is lodged in a particular officer or tribunal, the decision of that officer or tribunal is conclusive, and cannot be reviewed, except as authorized by law."

The court then proceeds to hold that the act of August 3, 1882, does not authorize any review, by habeas corpus or otherwise, and that the decision of the commissioners is final and conclusive. therefore, so far from upholding, is directly against, the government's contention on the point in question. I would say here, in passing, that, under the Chinese exclusion acts, I think the decision of the collector of customs is not final, but that the truth of the matter may be determined on habeas corpus, or in a proceeding against such persons for being unlawfully in the country: U. S. v. Loo Way, 68 Fed. 475. This rule, however, has been so changed by a subsequent act of congress that now the decision of the collector of customs, if adverse to the alien, is final, unless reversed on appeal by the secretary of the treasury. 28 Stat. 390.

In opposition to the conclusiveness of the Oregon judgment in favor of the defendant the government further contends that the refusal of our government to allow aliens to enter or remain in this country is an exercise of political power, and therefore the doctrine of res judicata does not apply to the determinations of any of the

This case,

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