UNITED STATES V. LEE HOY;

827

"Second. Chinamen,\Yh!> are 'not laborers, ·and who may have heretofore resided in the United States, are not prevented by eXisting law or trp.aty from returning to the United States after Visiting China or elsewhere. No certificates or other papers, however, are issued t'Uherby the del.artment or by any of its subordimiteollicers, to show that they are entitled to land in the United 8tatt's, but it is suggested that such persons sbould;'befol'e leaVing the United8tlltes, provide themselves with such proofs of identity as may be deemed proper, show ing that they have been residents of the Uniled States, and that they are not laborl'rs, so that they can present the same to and be identified by the collector of customs at the port where they returll. It

It is impossible for merchants of Chinese nativity, established and domof China or iciled within this country, to obtain from the any other.country certificates meeting the requirements of the sixth seetion of.the restriction actaa it has been amended, for which reason the treasury department has interpreted that law as being inapplicable to them, and has made the above regulation to enable them to go and return, without opening a way for others to gain admittance fraudulently. Pursuant to this regulation, many merchants of this class have been permitted to .go out of the country temporarily with the assurance from United States officials of the right to return, and have been permitted by United States officials to return without having certificates issued to them by any government. All such merchants who are now within the United States are liable to be arrested and banished if the law requires that this defendant be so treated. I am not inclined to hesitate about enforcing the law, even if it be harsh, but it is my duty to carefully inquire and find authority for it in the law before making a decision which may work ruin to a large number of unoffending persons. The defendant did not return from his visit to Victoria clandestinely or fraudulently. Every question as to his right to return has been once passed upon by a representative, of the United States, specially authorized and required to make careful inquiry as to the facts, and decide such questions. There is no law providing for a review of any' decision of that officer in such a case by any courtj on the contrary, the law does require that the collector's decision shall not be subject to review except by the secretary of the treasury. Of course, if any officer of the executive branch of the government misconstrues or misapplies the law, his action based upon such error may be annulled or disregarded by a court in any case coming within its jurisdiction. But by a line of decisions of the supreme court a general principle has become fixed as part of our national jurisprudence.. It is this: When nn officer or special tribunal is expressly empowered to receive and examine proofs, and decide any question of fact necessary to be determined in the course of administration of the government or execution of the lawR, and no power of review 1s given to the courts by any statute, the finding of facts made by such officer or special tribunal pursuant to such authority is conclusive upon the parties affected and upon the courts, unless it can be impeached for fraud. Upon this principle the courts are precluded from reopening a case once passed UpOll by such an authorized officer or special tribunal for the mere purpose of inquiring whether or not the decision was predi-

828

FEDERAL REPORTER,

vol. 48.

catedupOn legal or sufficient evidence. Johnsrm v. Towsley, 13 WaD. 72; Steel v.Smelting, etc., 00.,106 U.S. 451, 1 Sup. Ct. Rep. 389; Bald-winv. Sta/rk,l,Q7 U. S.465, 2 Sup. Ct. 473. For the reasons above given I that the defendant is not in fact one of the class of persons not lawfully entitled to ,remain in the United States; That" having been permitted by a collector of customs to land, after a temporary absence from the United States, without fraud on his part, the defendal1t <litnnotbe lItwfully sent out of the United States because of a mere error of a collector in not exacting legal evidence of the facts as to. his identity and the nature of his business. In'my opinion, the la,w .does not authorize, but forbids, the execution of the warrant issued by the commissioner in thill case. It is the judgment of this court, therefore, that the order and jndgment of the commissioner be reversed. The United States attorney having signified a desire to have my decision reviewed by the courto! appeals for this circuit I will not discharge the defendant! but will admit him to bail, upon a recognizance with sureties,conditioned for his appearance at the next term of this court, and to abide the final determination of this case after the decision of the ap· pellate cQurt.

UNITED, STATES V. SPRAGUE

et al.

(DiBtrtct Oourt, E. D. Wisconsin. November Term, 1889.)

1.

UNITED ST,ATES BONDS-FRAUDULENT IMITATIONS.

9.

Under Rev. St. U. S. § 5430. denouncing a punishment against,l;lDy one having in j;losse$'sion "any obligation or other security" after the similitude any obligation issue!lby United States with intent to sell or otherwise use the same, it is no offense to 8Q have in possession a bond issued bya mining company. and resembling a United 'States" bond, but not pnrporting to be executed by any J?arty whatever. The walltof. .e"ecution is not merely a fact Which the jnry may consider in determining al!tfl degree of similitude, but is a complete SAME. 'To constitute the offense it is not necessary' that the instrument shonld purport to be an obligation of the Unite(i States, or bel\r such a likeness thereto as to deceive experts or' cautious men. It is sufficient if it is calculated to deceive a sensibleand unsuspecting man of ordinary observation and care, dealinll: with a man t01;le hpnest.

of

At Indictment of James D. Sprague and others for having in possessionJraridulentimitations of United States bonds. Heard on motion for, trial. Motion granted. G. W. Hazelton, Dist. Atty., for the United States. N. S, Murphey, for defendants.
DYER, J. The defendants have been convicted, under section 5430 of the Revised Statutes, of the offense of' having in their possession an obligation engraved and printed after the similitude of an obligation issued under the authorityofthe United States, with intent to sell or oth-