Opinion of the Court-Deady, J. [August, And the "such voter, person, or officer," mentioned in the latter clause, and who may be the object of such "aid, counsel," etc., must be the "qualified voter," the "any person" or "officer of such election," mentioned in the preceding part of the section. On this analysis of the statute, the eighth and ninth clauses when expressed in full should read: Any officer at a congressional election, who "knowingly receives the vote of any person not entitled to vote;" or knowingly "refuses to receive the vote of any person entitled to vote," or "any person" who "aids, counsels, procures, or advises any such voter, person, or officer to do any act hereby made a crime, or omit to do any duty the omission of which is hereby made a crime, or attempt to do so," shall be punished, etc. The use of this form of the verb "attempt," in this connection, is a blunder. It should have been in the form of the third person singular-attempts-or it might have been in the future tense shall attempt-so as to read: Any person who aids, counsels, etc., or "attempts" to aid, counsel, etc., or "shall" attempt to aid, counsel, etc. However, the phrase "attempt to do so," or "attempts to do so," cannot be construed to apply to any act other than those mentioned in the clause in which it is contained; and those are "aids, counsels, procures, or advises any such voter, person, or officer" to do or omit to do an act, the commission or omission of which is by the statute made a crime. Disregarding the grammatical error in the use of the word "attempt," in legal effect, the clause reads: "Any person who aids, counsels, procures, or advises, or attempts (or shall attempt), to aid, counsel, advise, or procure any such voter, person, or officer," etc., shall be punished, etc. The act of attempting to vote illegally, except in the case of attempting to vote in the name of another person, appears to have been overlooked in the preparation of the statute, and no provision is made therein for its punishment. Therefore, the act with which the defendant is charged in the indictment—an attempt to vote illegally, because he had already voted once at said election is not a legal crime, and the demurrer is well taken. This is to be regretted. The defendant has incurred the moral 1888.] Opinion of the Court-Hoffman, J. guilt of attempting to pollute the ballot-box- the sacred depository of the public will with an illegal vote, and deserves legal punishment therefor. But the remedy for the omission is with Congress, and not the courts. If the defendant, in his attempt to vote, did any unlawful act to accomplish his purpose, he may be proceeded against for a violation of the fourth clause of the section, which provides that if any person "does any unlawful act to secure an opportunity to vote for himself, or any other person," he shall be punished, etc. Thus, if the defendant was sworn, on his offer to vote a second time, and thereupon stated that he had not voted at that election, he would be guilty of an unlawful act perjury-"to secure an opportunity to vote for himself," and could be prosecuted therefor. The demurrer is sustained. IN RE WO TAI LI ON HABEAS CORPUS. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA 1. HABEAS CORPUS.-A Chinese actor claiming the right to enter the United States must produce the certificate required by section 5 of the amended restriction act of 1884. Before HOFFMAN, District Judge. Mr. Philip Teare, for petitioner. Mr. John T. Carey, United States Attorney, and Mr. Charles L. Weller, Assistant United States Attorney, on behalf of United States. HOFFMAN, J. The petitioner claims the right to land in the United States on the ground that she is the wife of a Chinese actor, and therefore does not come within the prohibition of the treaty and of the act of Congress which forbids the coming into the United States of Chinese laborers. By the sixth section of the amended restriction act of 1884, it is provided in substance that "every Chinese person other than a laborer who may be Opinion of the Court-Hoffman, J. [August, entitled by said treaty, or this act, to come within the United States, and who may be about to come to the United States, shall obtain the permission of, and be identified as so entitled by the Chinese government, etc. In each case to be evidenced by a certificate issued by such government, which certificate shall be in the English language, etc. . . . . The certificate provided for in this act, and the identity of the person named therein, shall, before such person goes on board of any vessel to proceed to the United States, be vised by the indorsement of the diplomatic representatives of the United States in the foreign country from which said certificate issues, or of the consular representative, etc.; . . . . such certificate vised as aforesaid shall be prima facie evidence of the facts set forth therein, and shall be produced to the collector of customs in the port of the district of the United States at which the person named therein shall arrive, and afterwards produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing it; the same to establish a right to entry into the United States." No such certificate has been produced, or was obtained by the petitioner in this case. It is contended on her part that the certificate is declared to be the sole evidence permissible on the part of the person so producing the same, and that inasmuch as this person has not produced any certificate, that parol testimony is admissible to show that she does not belong to the prohibited class. The language of the act is certainly infelicitous, but its meaning is obvious. It is that the certificate is required to be produced by all Chinese persons, other than laborers, claiming the right to enter this country, and such certificate is to be the sole evidence of their right to land. Unless, therefore, the whole section is to be disregarded, and the obvious intention of Congress frustrated, the certificate must in all cases be exacted. To say that because the applicant has utterly neglected to comply with the law, and has produced no certificate, therefore her right to land may be established by other evidence, would be an absurd conclusion, founded upon the mere letter of the statute, and in obvious contravention of its spirit and meaning. The petitioner must be remanded. 1888.] Opinion of the Court-Hoffman, J. IN RE TOM MUN ON HABEAS CORPUS. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA. 1. HABEAS CORPUS. - Petitioner remanded on the ground that he has failed to establish to the satisfaction of the court his right to enter the United States. Before HOFFMAN, District Judge. Mr. John T. Carey, U. S. Attorney, for the United States. Mr. Thos. D. Riordan, for petitioner. HOFFMAN, J. The petitioner claims to be entitled to land on the ground commonly known as "previous residence." He adduces the usual proofs tending to show that he left the United States on the 15th of March, 1882. The company's books are produced showing that one Tom Mun paid his dues, and departed on the steamer Oceanic, which sailed on that date. Books also are produced from the shoe factory in which he claims to have been employed, which contain his name among those of the employees paid off a few days previous to the date of his alleged departure. He also produces one F. H. Martin who testifies that he was a Chinese collector; that he knew the petitioner at the shoe manufactory mentioned, and he "guesses" he went away in 1878 or 1879, since which time he has not seen him. This discrepancy between the testimony of the petitioner and his only white witness is explained by the attorney for the petitioner by the suggestion that the date fixed by Martin is, "as close as a white man could fix the departure of a Chinaman in whom he had no interest or business connection." This observation may be just, but it is also evident that the witness who made a mistake of three or four years as to the date of the departure may be equally mistaken as to the identity of the person whom he pretends, or perhaps thinks, he saw working in the shoe factory. It unfortunately happens, however, that it appears by the company's book produced by the petitioner, that another Tom Mun, who claimed to be the party mentioned in the Six Company's book, was landed by the court. That entry has been canceled, affording certain proof that it has been used by the first Tom Mun, and successfully. The attorney for the petitioner, who was also the attorney of the first Tom Mun, is thus compelled to admit, and even to contend, that the first Tom Mun was landed by means of perjured testimony and false personation; but he insists that the present Tom Mun is the true owner of that name, and that he ought to be landed, notwithstanding the fraud previously practiced upon the court. The circumstances of this case afford another instance of the perjuries and frauds committed in these cases, and of which the court has unfortunately been too often the dupe. Whether the present applicant is Tom Mun, or whether the real Tom Mun was the man heretofore landed, or whether either of them is the owner of the name, it is impossible to determine. It may be that a third Tom Mun will hereafter present himself, and the court will be asked to believe that the testimony in both these cases is false, and that the true and genuine Tom Mun is Tom Mun number 3, who may hereafter make his appearance. When a Chinaman claims to be landed on the ground of previous residence, the burden of proof is upon him to show to the satisfaction of the court that he was in this country at the date of the treaty, and that he departed before the act of 1882 went into operation. If he fails to do so, he must of course be remanded. In this case I am unable to reach any satisfactory conclusion as to which of these Tom Muns, if either of them, is the person whose name is entered in the company's book. It is highly probable that somebody of that name did depart for China at the time specified, but whether the present petitioner, or his predecessor of the same name, is the man, depends entirely upon Chinese testimony, which was presented to the court in the first case with as much plausibility as in the present case. I think that the petitioner has failed to establish his right to land, and must therefore be remanded. THE NITH-Edward J. DE HART ET AL., LIBELLANTS. DISTRICT COURT, DISTRICT OF OREGON. AUGUST 30, 1888. 1. THE TERM "RUSTY" IN BILL OF LADING.-The term "rusty" in a bill of lading is a statement of fact and not an article of the agreement, and is therefore open to explanation or contradiction. |