UNi'rED STATES fl. HOK RING.

635

ohange in the form of the proceeding, the court would not have had the right to permit the ,change ,from the one to the otherform, which would, of necessity, have invdlved the transfer frofuone docket to the other. On the contrary, the inference is that,if the facts had required the change, the power to authorize it exists. Furthermore. is it not fairly inferable from the order made by the supreme court that' the circuit court, after dismissing the bill in equity I had the power to proceed with the cause in its original form, witbout requiring the plaintiff to mence the action. If this was not so, why was the circuit court directed, after dismissing the bill in equity, to proceed in conformity with the opin· ion? See case of Oherokee Nativn v. RaiZwayOo., 185 U.S. 641,10 Sup. Ct. Rep. 965, in which the supreme court remanded a case in equity to the circuit court, with instructions requiring the case to be transformed into proceedings at law for the awarding damages for right of way. I deem the question one of exceeding doubt, in a case brought originally in this court, and it can only be settled by an adjudication of the higher tribunal. If the right to order the transfer exists, it will tend to save expense and delay to litigants; and, for the purpose of obtaining an adjudication of the question, the motion will be sustained, and the case will be transferred to the law docket, there to be proceeded with as an action atJaw, with leave to amend the pleadings, if that be deemed necessary.

UNITED STATES tI. HOM HING.

(Dl8tr1ct Court, N. D. Ne1D Yor1c. January 6, 1892.)
CmlllBD EXOLUSION AOTS-POWEIlS 01' UNITSD STATB8 COM:JnssIon_DBDnnJ8 PoTBSTATBllI.

The provision made by the Chinese exclusion acts, (22 U. S. St. at Large, p. 58, I 12, and 25 U. S. St. at Large, p. 476, I 18,) for the examination before United States commissioners of Chinese persons alleged to be unlawfully in this country, clothes them with a jurisdiction which is entirely independent of the district court; and that court has no power to issue a dedimu8 potestatem to take testimony to be used in such an investigation, since Kev. St. U. S. § 866, authorizing the issuance of such a commission by the federal courts "in anr case where it is necessary in order to prevent ,3 failure or delay of justice·." applies only to oases of which those courts have jurisdiction. '

At Law. This is an application for a commission to take testimonyof witnesses residing in San Francisco in a' proceeding under the Chinese exclusion acts, pending before Edward L. Strong, a United States commissioner at Ogdensburgh in this district. The affidaVIt upon which the motion is based is not entitled in the United States district court, but "before Edward L. Strong, United States commissioner." The motion is made at a special session of the district court.,' The proposed order is entitled "At a special term of the United States district court," it directs that a tkdimua potestatem issue, that it be returned to Commissioner Strong, and

636

FEDERAl, REPORTER,

vol. 48.

"that theitestimony so taken may 1;>e iritroduced hi evidence before said United States commissioner on the trial of this action before him with the same force and effect as if the witnesses had been personally examined before him in open court." D. S. Alexander,U. S. Dist. Atty., for the motion· . Daniel Magtmt and a.A. Kdlogg, opposed. COXE, J. The defendant was arrested under the Chinese exclusion acts, charged with having come illegally into the United States, and brought before Commissioner Edward, L. Strong. Testimony was given before the commissioner tending to'show that the defendant was born in the United States and, for,this reason, entitled to remain. A motion is now made at, a special session of the district court for a commission to examine witnesses residing at San Francisco who will, it is alleged, dis"' prove defendant's testimony as to the country of his nativity. It is conceded forthe purposes of this motion that the papers show, sufficiently, the materiality of the San Francisco witnesses, and the objection that the proceeding is one where -the defendant has a right to be confronted by the witnesses against him, is not pressed. The motion is opposed on the following grounds: First. Under section 866 of the Revised Statutes the court has not the power to issue a dedimu8 for the purpose of taking testimony in a cause pending in an"' other tribunal. Second. That the commissioner has exclusive jurisdiction of the investigation in question free from the direction and control of this court which has not the power to direct what testimony he shall receive. Third. That the proceeding before the commissioner is a statutory proceeding and hofa trial at\d'there isba power in the court, or elsewhere, to order that the testimony shall be taken commission. Fourth. ,That tne'pr6ceeding iS8umn'lliryaud, even if the power existed it should pot bElm_e,rc!sedwhere defendant will. depnved of hIS lIberty pendmg the return of the teshmony. (The onlY'p_rovisio.n of the. act of May 6,1882, (22 St. at Large, 58,) applicableto:tflepoint i13controversy is asfollows:. . ctili1esf;\ person found u*raWfllllY within the United ,states shall be ca.llsed to be removed therefrom to tJle country from whence. he came, by direction of the president of the United States, and at the cost of the United States. after'betnilbtoughtbej'01'e some' justice, judge, or commissi01/.e1· of a court of the United States and found to be one not law/Utiyentitled to be or remain in the United States." Section 12 which. contains the foregoing language was amended by the act cif July 0, 1884.(23 St. at Large, 115.) The amendment does not the language in italics above quoted. ,Section 13 of the act of September 13, 1888, (25 St, at Large, 476,) provides as follows: "1'hat any Chil'lese person, or perllonof Chinese descent, found unlawfully in the United States or its territoriell,' 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, orcottliriissioner of any United States court, returnable before any justice. judge, or commiSSioner of a United States court..

UNITED STATES

v.

ROM RING.

637

or before any United States court, and when convicted, upon a hearing. and found and adjudged to be one not lawfully entitled to be or remain in the United States, suchpersonsball be removed from the United States to the country whence he came. But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such con· viction. appeal to the jUdge of the district conrt for the district. A certified copy of the judgment shall be the process upon which said removal shall be made, and it .may be executed by the marshal of the district. or any officer of a marshal under the provisions of this section." This section, which provides for a hearing, a conviction, a judgment and an . appeal, has recently been held to be in force by the district judges of V ermontandof the eastern district of Michigan. In re Mah Wong Geei47 Fed. Rep. 433; U.S. v. Clumg,Sam, ld. 878. The .foregoing are all the provisions of the Chinese exclusion acts relating to the powers and duties of circuit court commissioners, They are mentioned, with others, as judicial officers before whom the suspected Chinaml:ln maybe brought, but no additional or exceptional powers in conducting the investigation are conferred upon them. The investigation is to be carried on as other investigations are. All the acts in question do not clothe the court with power to issue a dedimus, where the investigation is proceeding before a commissioner, it remains to be seen whether such power can be found in any other provision of law. The takingof,testitnony by commission is a creature of statute, in derogation of the, common law. 'A commission should never issue unless the authority is clear. Something more than a mere presumption is required. Dwinellev. Howland, 1 Abb. Pro 1; Randall v. Venable, 17 Fed Rep. 162. Section 866 of the Revised Statutes provides that"Ln any ,case where it is necessary. in order to preveata failure or delay of illstiGlfl.: courts of the Ul)ited States may grant a dedimus patestafe to common usage." It is very clear that the words "in any case" do not mean broadly any case whei'e \:>ne of the'parties to a controversy desires the evidence of a fOTEJignWitdess, but any case of which the court, granting the commig,i. sion,HlJ,s jurisdiction. The cause must be one pending in the court an<i notbefore some other tribunal or officer over whom the court has nC) power. or control. This is not a case where the court has referred the action or some part thereof toa commissioner to report his findings of fact and law. The commissioner in this proceeding is as independent of this court as he is of the court of queen's bench. ComrnisfliQuer Strong has precisely the same power and authority, in the investigation now pending before him, that a justice ofthe supreme court would have in like circumstances,no more and no less. For the court to undertake to direct the course of proceeding before him would be an unwarrantable interference which he would ·be justified in resenting. and particularly so in view of the apf>eal to the district judge permitted by'the act of 1888. The district attorney quotes with approval from the opinion of the c.ourt in 9o/J'w Goo Pooi'sOase, 25 Fed. Rep. 77, as follows:

l'EDJ<1RAr, 'REPOR'l'ER, vol.

48.

"The poWer exercised by the magtstratels .apowel' summill'ilytoinvestigate anddetel'tn'ine the right of a person to enter or remain in :the cou.ntry,...:;. apower'80lnettmes conferi'ed upon {(l&'mmissioners at immigration'but by, thil falV confi'ttedtb;a' justice,judga, ot!Mmmissioner.'" ,"' . . 'He further the judge or 'commissioner" with those, which"by the same statutes,areconferred 'upon the the portland' those which by the" alien labor and immigration (26 St. at Urge, 1084) are conferred upon "inspection ,officers." . is entirely correct. The investigation is summary and the functions of the commissioner: are akin to those exercised by the collector and inspectors. But can·it be contended that the court has the power to issue a commission in an investigation pending before these offleets, in the one caseto determine whether a Chinaman has a right to ,land and in the other' to ascertain whether an immigrant is an idot or afflicted 'with a contagious disease? If stich power has ever been exerdised in' these or similar circumstances' 1 have been unable t6 discover it. It is freelyadmHted tha.tnoprecedent for this p1'll.ctice exists and after a somewhat extended examination I have been unable to find an authority whichdontains the remotest hint that the court possesses such power. . It is, of course, unnecessary to pass upon the other objections urged by the defendant, further than to say that it would seem to be for the advantage of both parties-the defendant as well as the government-if the officers charged with the execution of these laws were invested with a discretionary power to issue commissions and act upon testimony taken de bene esse. The crude and obscure provisions of the sections quoted have already provoked a marktld conflict of authority and involved the courts in a maze of perplexity and doubt. The law should be made plain and effective. At present it is neither. The motion is denied.

act"

NOTE BY THE JUDGE. During the investibation of the questions presented by the foregoing motion I found it .necessary to examine and collate many statuttlS general and special powers circuit court commissioners. "As there is often misapprehension regarding their powers and 'duties [ have thought that the result of this labor might be of some interest. especially as I am not familiar with any extended collection of references on the subject; Section 627 of the Revised Statutes provides that "each circuit <court may appoint. in different pal'tsof the district for which it is held, so ma,ny discreet persons as it may deem necessary. whosball be called ·commissioners Qf the circuit courts,' and shall exercise the pqwers which are or may be expressl1J coriferrerf by law upon commissioners of circuit courts." Commissioners of the circuit court have nO powers, therefore, except sucb as are expressly conferred bylaw. The office was originally created by the act of February 20. 1812. (2 St. at Large. 679.) This act made it lawful for the circuit court "to be holden in any dietrict in which the present provision by laWl. fOl" taking bail and affidavits in, civil causes, is. inadequate. oron account of the extent of such inconvenient, to appoint such and so many discreet in. different partfi of the district. as such courts shall deem necessary, to take of bail and affidavits." Rev. St. §§ 945, 1014, 1778. By the ac"t of March I, 1817, (3 St. at Large, 350,) the

UNITED S.TATES V. ROM RING.

639

authority of commissioners to take bail and affidavits in. civil causes depending in the circuit courts was extended to the district courts. They were also given authority to take depositions under the thirtieth section of the jUdiciary act. Rev. § By the act of August 23, 1842, (5 St. at 516.) it was enacted that commissioners "shan and may exercise all the powers that any justice of the peace, or other magistrate, ofaDY of the United States, may now. exercise in respect to offenders for any crime or offense against the United States, by arresting, imprisoning, or 'bailing the same, under and by virtue of the thirty-third section of the act of the 24th of September"A,. D.1789, . III III * and who shall and may exercise all the powers that any judge or justice·of the peace may exercise under and in virtue ot tbe sixth section of tbe act passed the 20th of July, A.D. 1790." An scI; Jnly 2!kl&i)6, (14 St. at. Large, 343,) extends tbe.powers of commissioners to the seventh section of the act of July 20, 1790·. ,. The second section of the act of August 23, 1842, authorizes commissioners to require a recognizance from witnt'sses to appear at the trial of the cause where the crime was committed on the high seas or elsewhere with the admiralty and maritime jurisdiction of the United States. Section thirty-third of the act of :September 24, 1789, (the JUdiciary Act,) referred to in the act of August 23, 1842, just quoted, provides" that for any c,rime or United States the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of, any of the United States where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense the United :states, be arrested and imprisoned or,blililed, as the case may be. for trial before such court of the United States as by this act has cognizance of the offense. " Rev. St. § 1014. The sixth section onhe act of July 20, 1790, (1 St, at Large, 133,) providell for a sommons·dfthe master of" Vessel in cases of mariners' wages. Theseventh section provides for the arrelilt and commitment of deserting seamen. Rev. 8t. §§ 4646, 4547. By the act of August 8, 1846, (9 St. at Large, 73,) commissioners are given authOrity to enforce the awards of foreign consuls. By the act of September 16, 1850, (9 St. at Large, 458.) Rev. St. § commissioners are vested with the same power to take oaths, allirmations or acknOWledgments under the laws of the United States as justices or justices of tbepeace of any state or territory. Rules five and thirty-five of the supremecourtauthorize the, taking of bonds oTstipulations in admiralty suits. before commissioners·. They are empowered to compel witnesses to appear and depose to letters rogatory addressed to them from any. court or foreign government. 10 St. at Large, 630. They are given cognizance of offenses against the elective franchise and ciVil rights of citizens. Rev. St. § 1982; 18 St. at Large, 335. The comt is authorized to increase the number of commissioners for the purp08e.of enforcing the civil rights act; Rev. St. § 1983. The act of July US, 1866, (14 St. at Large, 152,) empowers commissioners to issue searchwarrants in internal revenue cases. § 3462. They also have authority to discharge a defendant imprisqned on mesne process in cases where be would be entitled to a discharge if process were issued from a state court. Act March 2, 1867, (14 St. at Large. 543;) They may discharge a poor con vict after having heard and determined the matter. Rev. St. §§ 1042, 5296. They may):wld: to ,security of the peace and for good behavior... Id. § 727. They lJ,uthorized to takl;l,evidenll8 and proofs of debt in bankruptcy. Jd. §§ 5003, 5076, They also have jurisdiction in extradition cases if authorizt'd by the court to act. (Id. §§ 5270, 5271.) and they may issue search-warrants in trade-mark cases, (19 St. Large, 141,) and counterfeit money cases, (26 St. at Large,74U.) They mat take aflidavitsin land-entry cases. 19 St. at Large, 121. Other statutes .confer special powers upon commissioners for the Distl'ictof,Colum1;lia and for certain but these statutes are not of general interest. .

640

FEDERAL REPORTER,

vol. 48.

To recapitulate and condense the foregoing provisions, it will be found that commissioners have authority as follows: (1) To takl' bail, affidavits, oaths, recognizances, affirmatiells, depositions de bene esse acknowledgments in United States courts and under the laws of the United States and to compel witnesses'to answer letters rogatory.' (2) To exercise the powtlrs of justices of the pt'acein arresting and holding to baUin criminal causes under the laws of the United States. (3) To summon masters of vessels in cases of mariners' wages,to arrest deserting seamen and to take boJ\ds and stipulations in admiralty causes. (4) To enforce extradition treaties and the awards of foreign consuls. (5) To issue in internal trade-mark, and counterfeit money cases. (6) To discharge defendants imprisoned for debt arid poor con viets. (7) To hold 'to security for the peace andtakeev'idence and proofs of debt in bankruptcy. (8) To determine the status of Chinese persons under the exclusion acts.

HITCHCOCK

et al.

tI. CITY OF GALVESTON.

(Circu(t Court, E. D. Texas. March Term, 1880.)
L

MANDA.¥US.....WHEN RIITURNABLE-TEXAS S;;A.TUTE.
<

Rev.:St. Tex;' art. 1215, proViding thattbll'defendant shall be summoned to all" pear at thll next regular, term of court, rela.tes only to ordinary pr0gessobtained from the ministerial oftlcerof the court, not to extraordinary writs. and a writ of mandltmU8 may be D:lade returnable 'at the same term. Fitzhugh v. Custer, 4, Tex. 891, followed. . . Wheres writ of malldamusis issued against the mayor and aldermen of a oity commanding them to pay forthwith a judgment against the city, or to shOW cauIW why a. peremptory writ should not be issued requiring them to levy a tax for the purpose'of paying the same, service upon the mayor alone is suftlcient for the purpose 'of eliciting an answer, as the city is the real party in interest. '. .
MUNICIPAL OFFICERS-SERVICE.

..'.'

2.

8.

SAME-;LEVY OF TAX-REMEDY AT LAW-PENDING GARNISHMENT.:

Where a person having a judgment a city has gltrnished stocks owned by it to.8D amount sufficient to satisfy hlsclaim, he cannot have a writ of mandamus to compel the levy of a tax, while the question of, the validity othis garnisbment is still pending in the supreme court on his own appeaL '

Application by D. G. Hitchcock &00. for a writ 9f mandamus to mayor 'and aldermen of the City ofGalveston , requiring them to levy a tax for the purpose of paying a against the city, owned by him. Heard on demurrer to the return to the alternative writ. Demurrer overruled, and judgment for respondents. F. Oharlea Hume, for petitioners. W. P. BaUinger and R. V. Davidson, for respondents.
BRADLEY, Justice. On the 7th of May lllst the plaintiffs, upon a petition filed for that purpose, obtailledan order for the issue of an alternative mandamus commanding and directing the defendant the city of Galveston to pay .forthwith the amount of plaintiffs' judgment, with interest and costs, (being a judgment for $117,540.99,< rendered May 9, 1d79, with interest at 8 percent. per annum,) or to appear before the Court on Tuesday, June 1,1880, and show cause,. if any there might be,
; ,;!,

1 .. 1 · '