IN RE AH YUK.

781

preciation of values of property and losses of accounts, the ultimate result of the financial panic which had swept over the country." There being, then, an absence of fraud in the transaction, there can be no doubt the assignees in bankruptcy, or their grantee, the Metropolitan National Bank, have no standing to attack the conveyance. ']0 give such a right to an assignee in bankruptcy, fraud is a sine qua non. Section 5046, Rev. St., recites what rights pass to such assignees, viz.:
"All property conveyed by the bankrupt in fraud of hiB creditors, * * * with the like right, title, power, and authority · · · to sue for and recover. and defend the same as the bankrupt might have had if no assignment had been made, shall * · · be at once vested in such assignee."

This statute has been passed upon by the supreme court of the United States in Warren v. Moody, 122 U. S. 133, 7 Sup. Ct. Rep. 1063, and Adams v. Collier, 122 U. S. 382, 7 Sup. Ct. Rep. 1208, in both of which it was decided that fraud was a necessary element to give the as· signee in bankruptcy a right of action, and that insolvency, of itself, or the fact that the property conveyed constituted more in value than the grantor could rightfully withdraw from the reach of credirors, would not, of themselves, vest such a right of action in the assignee. There must be fraud, for so the statute says. In other words, insolvency not then known, and only developed by subsequent events, or the fact that such events showed the property conveyed was an un· due part of the grantor's estate, are not to be deemed fraud pel' se; and, as the statute bases the right of the assignee to recover upon the existence of fraud. such fraud must be alleged and proved. out of court on Complaint is made that the appellant was the pleadings. This is not the case. The court expressly stated that, while the case might have rested on that ground, it would decide it upon the proofs. Such being the case, we are not called upon to pass o,n the pleadings; but, in omitting so to do, we would not be understood as intimating there was error in the court in saying the .case might be rested on that point. Being satisfied, from the evidence, the court arrived at proper condusions of fact, and to those facts correctly applied the law, its de· .cree must be affirmed, and this appeal dismissed, at the appellant's costs
In re AH YUH:. (District Court, D. l'>finnesota.
,CHINESE-EXCLUSION ACTS-JURISDICTION.

January 18, 1893.)

A United States commissioner, while he has authority, in a summary proceediJ1g under the Chinese exclusion acts, to order the deportation of a Chinaman found to be unlawfully within the United States, has no juliadiction to order him to be imprisoned at hard labor for 30 days prlor to the time fixed for 1)is deportation. U. S. v. Wong Sing, 51 Fed. Rep. 79, applied.

Petition by Ah Yuk, a Chinaman, for writ of habeas corpus. Prisoner discharged.

782

FEDERA.L \REPORTER,

vol. 53.

H. Ai Tinkhmn;for ,petitioner. ," U. ,13. Dist-Atty.,
,(;::'1 1 "

'EnGERTON. District Judge; The petitioner, Ah Yuk, was arrested on Deootnber 19, 1892;andbronght before J.e A Carey, commissioner of the' 'circuit'court, lbr' ;this district,'charged with ha'rlag unlawfully ellteredtlie United States, and being on that date unlawfully therein, in 'rlolation of an act of congress entitloo"An act to to Chinese, approved May execute certain. treaty 6, 1882," and the acts amendatory thereof and supplementary thereto; that afterwargK on the said 19th day of December, 1892, the said Ah Yrik was taken before said commissioner, by virtue of said complaint and warra.nt, who, a hearing thereon, fou,ij,dand adjudged that said Ah, a Chinese laborer, and a subject of the Chinese empire; that, came unlawfully to the United Smtes, and was then in the United States contrary to law and in 'rlolation of the acts aforesaid; and:it was thenaJ:l.d ordered and adjudged by the /'laid commissionel' "that the said Ah Yuk beimprisOIled at hard laboJ.' in ,the jail of St., Lollis county, in said district ,of ,Minnesota, for thirty days, and then be rem9yed and deported from the said United States, of ,America to China." The petitioner, caused to be issued a writQf ,habeas corpUSI and the retuvn to said writ admits the said , , The and only, q'llestion;presented. to the court, the circuit ,pourt commissioner authority" llnder the law and constitution whe:Q. he sen,tenced the petitioner to be confined at hard labor for 30 day,s. The petition&' could be arresteq, and,upon a summary examinatiqn before the circuit court could, upont:he finding anl1senteIWeof that officer, be deported, but this doe.s, not I;lecessarily determine that the circuit coul4, tb.US summarily sentence the petitioner to hard labor. In the case QfU. S. v. Wong ,Sing, reported in 51 Fed. Rep., onpage 79, the learned judge says:
'fToglve proper effeQttQ all the provisions ,of this act, it Is necessary to give it an. aut;b0riziIlg indictments .and criminal prosecutions in those cases in which the 'government may be. able to secure and produce sufficient evidence to justffy! the same, .and at the same time preserving the l'emedy of summary proceedings in all cases in which criminal prosecutions may be, for any reason, impracticable, and requiring that Chinese persons unable to prove their right to remain in the country, but who caunot be convicted upon a criminal charge, shall be sent to their own country, in accordance with the procedure and practice adopted in enforcing the existing laws. Such procedure and practice permits an information to be :tiled by the United States attorney,:npon which the accused may be brought to trial; and if, on such trial, the judge finds the necessary facts, he may issue process for the removal of the accused to his own country,"

If the commissioner had sentenced the petitioner to be deported only, his would not be disturbed, but I think he exceeded his aut}ipnty, und,eI' law, and.a1so under the limitations and restrictions of articles 5 and 6 of the amendments to the constitution, when he sentenced him to hard labor; and, as that is the charge updn which the writ issued, the petitioner mus-t be discharged from custody.

m

BE WA.RE.

783

In re WARE. (CIrcuit Conrt. D. MI.J:mesota, Third Di\·lslon.
brTERSTATE COMMERCE-LABELING BAKING POWDER.

.Tune 29. 1892.)

In the absence of proof that alum in baking powder I.s deleterious to · health, <kn. Laws Minn. 1889, c. 7, § 1, as amended by Gen Laws :Minn. 1891, c. 119, declaring it a misdemeanor to sell baking powder containing alum,. unless the package have a label stating that it contains alum, violates Const. U. S. art. 1, § 8, granting to congress the power to regulate interstate commerce, in so tar as it relates to original packages imported from another state. .

At Law. Application of R. B. Ware for writ of habeas corpus. Writ granted. M.. D. Mmm, for petitioner. SANBORN, Circuit Judge. Dellafield, McGovern & Co., who were ill that state, and placed in a citizens of illinois,' package which was not marked with the words, "This Baking Powder Contains Alum," a quantity. of baking pOWder, and shipped the same to the prisoner, in Minnesota, who W88 their agent for the purpose of selling it. The prisoner, as such agent at St. Paul, in the state of Minnesota, sold this original package in the same condition in which he received it. There was no charge that this baking powder was pois()'nous, or in any way dangerous, or that its use W88 in any "'ay deleterious to the publichealtb. For this sale the prisoner was committed to the county jail by the municipal court of the city. ()f St. Paul, because it was a violation of section 1 of chapter 7 of the General Laws of Minnesota for 1889, as amended by chapter 119 of the General Laws of Minnesota for 1891, which declares it to be a misdemeanor to sell baking powder containing alum in Minnesota, unless the package containing it is labeled, "This Baking Powder Contains Alum," and imposes a penalty by fine or imprisonment for such misdemeanol.". Article 1 of section 8 of the constitution of the United States provides that "the congress shall have power to late commerce among the several states." This power to regulate commerce was by this provision of the constitution granted by the people and the states to and vested in the congress exclusively, and no state, by virtue of any power reserved to the states, can lawfully infringe upon this grant. Any act of a state which interferes with interstate commerce in a well-known and sound, article of commel"ce is unconstitutional and void. Railroad Co. v. Husen, 95 U. S. 465, 471--473; Bowman v. Railway Co., 125 U. S. 474, 475, 479--481, 484, 485, 488, 489, 497, 507, 508, 8 Sup. Ct. Rep. 689, 1062; Henderson v. Mayor, 92 U.S. 271, 272; Foster v. Commissioners, 7 Minn. 140, (Gil. 84;) Hall v. De Coir. 95 U. S. 485. There is no question that a state, in the exercise of the police power reserved to it, may pass sanitary laws, and laws for the protection of life, liberty, or property within borders, and, for the purpose of self-protection, may pass reasonable quarantine and inspection laws, but it cannot, under the cover of the police powers, subEltantially, prohibit or burden st.ate commerce. Thull it may prohibit the importation into the state.