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tions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the provisions of the Constitution securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.”
We think this characterization by the Supreme Court, of the proceeding provided for in section 6 of the act of 1892, is applicable in a general way to the proceedings referred to in section 12 of the act of 1884 and section 13 of the act of 1888, with which we are here concerned. In the exercise of the sovereign right to determine what classes of aliens shall be prohibited from entering the United States, or from remaining therein, Congress has been compelled, in order to make such prohibition effective, to resort to drastic measures, and has relied upon administrative officers to execute its will, and has provided for the ascertainment by summary proceedings, of the facts, with reference to which its will is to be carried into execution. Such alien cannot be heard to complain that the proceedings connected with his exclusion or deportation are summary in their character, and that the review upon appeal in the District Court of the action of the commissioner, is not held to be such a cause as entitles him to a trial by jury. The hearing before the district judge is de novo, in the sense that testimony is taken before such judge de novo, there being no provision that the matter should be heard upon the testimony taken before the commissioner. It is still an appeal from the commissioner, and partakes of the character of the proceeding before that official. If the constitutional provision of trial by jury cannot be invoked in this case, on the ground that it is not a criminal prosecution or a suit at common law, it would seem clear that such right cannot be invoked on the ground that it is a "cause" in the District Court, within the meaning of section 566 of the Revised Statutes, since, not being a suit at common law, it can only be such a "cause" by being a criminal prosecution.
The case of In re Chow Goo Pooi (C. C.) 25 Fed. 77, was a habeas corpus case, heard by the Circuit Court for the District of California before three judges. The petitioner had been arrested under the provisions of the twelfth section of the act of May 6, 1882 (chapter 126, 22 Stat. 61 [U. S. Comp. St. 1901, p. 1310]), which was afterwards amended and made to read as in the twelfth section of the act of July 5, 1884. The twelfth section of the original act provided that any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, and at the cost of the United States, after being brought before some justice, judge, or commissioner of a court of the United States, and found to be one not lawfully entitled to be or remain in the United States.
To the objection of the petitioner, that he had not been accorded a trial by jury, the Circuit Court said:
"We are also of opinion that the person thus brought before the magistrate has no right to a trial by jury. He is not brought before him as a
criminal. No punishment as such is inflicted upon him. The consequence of his being unlawfully here is that he will be sent back to the country from whence he came. The power conferred and exercised is essentially a police power."
It is not without significance that, neither in this case nor in the case in the Supreme Court, just quoted from, is the requirement of section 566 referred to.
The next point of appellants meriting attention, is that "the District Court erred in applying section 6 of the act of July 5, 1884 (chapter 220, 23 Stat. 116 [U. S. Comp. St. 1901, p. 1307]), against defendants, notwithstanding the fact that under illegal regulations, carried into practice by the government, Chinese arriving in the United States are unlawfully deprived of their certificates under an illegal regulation (rule 23 of the Chinese regulations of 1903) requiring the administrative officials to impound them." The section referred to provides that the certificate given to a Chinese person at the port at which he is allowed to land should be 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 the same, to establish a right of entry into the United States. Rule 23 of the regulations promulgated by the Commissioner General of Immigration, with the approval of the Secretary of Commerce and Labor, in 1903, reads as follows:
"Rule 23. All certificates, or other evidence, offered by Chinese persons to establish their right of admission to the United States, other than laborers' registration certificates, shall be retained by the officers in charge of the administration of the Chinese exclusion laws at ports of entry; the immunity from arrest of the Chinese persons admitted thereon resting upon their exclusive occupation in the pursuits for which their certificates, or other evidence, claim that they respectively seek admission to the United States."
This rule was in force at the date of the alleged entry in April, 1904, although it was afterwards amended in May, 1905, by the Secretary of Commerce and Labor, by excepting the certificates provided for in Section 6 of the Act of July 5, 1884. Undoubtedly the promulgation of such a rule was inconsistent with the provisions in regard to certificates contained in the acts of Congress, and contravened the rights conferred upon Chinese in respect to such certificates, and the rule could not be legally enforced. No hardship is made to appear, however, in these cases from the enforcement of this rule in the cases before us. None of the appellants has alleged that he was in possession of such a certificate, or that such a certificate was taken from him, pursuant to the requirement of this rule, nor is there any evidence adduced to that effect. The criticism of the rule, however just under other circumstances, has no relevancy in the present case.
The other points raised by the so-called assignments of error are without merit, and need not be discussed. We find no warrant, therefore, for the interference of this court in the judgments, orders and decisions of the United States District Court for the District of New Jersey in the said causes, and the same are affirmed.
MOSS NAT. BANK OF SANDUSKY et al. v. AREND.
(Circuit Court of Appeals, Sixth Circuit. June 5, 1906.)
BANKRUPTCY-ACT OF BANKRUPTCY-APPOINTMENT OF RECEIVER-SURVIVING PARTNER.
Rev. St. Ohio 1906, § 3167, declares that, when a partner dies, the surviving partner or partners shall make application to the probate court and have an inventory and appraisement of the assets of the partnership and a schedule of its debts and liabilities made, which shall be filed in the probate court. Section 3167 declares that, if the surviving partner neglects to have such appraisement made, the administrator or executor must do so, and section 3169 authorizes the surviving partner to take the interest of the deceased partner at the appraised value, and, if he does not within 30 days from the filing of the inventory and appraisement, the executor or administrator shall apply to a court of competent jurisdiction for a receiver of the partnership to wind up its affairs and dispose of its assets. Held, that where, on the death of a member of an insolvent firm, the surviving partner applied for an appraisement, and after it was made elected not to take the deceased partner's interest, whereupon the administrator applied for the appointment of a receiver, the fact that such surviving partner joined in the administrator's application did not constitute an act of bankruptcy on his part.
Appeal from the District Court of the United States for the Northern District of Ohio.
H. L. Peeke, for appellants.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.
RICHARDS, Circuit Judge. This is an appeal from the order and judgment of the court below sustaining exceptions to the report of the special master and refusing to adjudge the appellee a bankrupt. The facts found by the master are as follows:
"(1) For a number of years before August 1, 1903, Charles H. Arend, August H. Arend, and William G. Arend, had been conducting a hardware business at Sandusky, Ohio, as a partnership under the firm name of Arend Bros. On said August 1, 1903, August H. Arend died, and thereafter the business of said Arend Brothers was continued by Charles H. Arend and William G. Arend until August 18, 1904, at which time said Charles H. Arend died, leaving William G. Arend the sole survivor of said partnership. Thereafter said William G. Arend, as such surviving partner, made application under and pursuant to the laws of Ohio to have appraisers appointed to make an inventory of the assets and liabilities of said firm of Arend Bros., and appraisers were appointed, who made a report showing the assets of said firm to be $9,329.75, the liabilities $29,399.95. On September 29, 1904, Arthur C. Arend, administrator of the estate of said Charles H. Arend, deceased, made application to the probate court of Erie county, Ohio, for a receiver to wind up said partnership and dispose of the assets thereof. On the same day said William G. Arend filed in the probate court a paper writing in which he waived the time of thirty days in which to elect whether he would take the interests of the deceased partner and partners of said firm, and elected not to take the interests of said deceased partner and joined in the application of Arthur G. Arend, for the appointment of a receiver. On the 30th day of September, 1904, one, George Arend was appointed receiver for said partnership, and on
the same day duly qualified as such receiver. Said receiver was not appointed because of the insolvency of said Arend Bros. and Wm. G. Arend, surviving partner, but because said surviving partner failed to elect to take under the statutes of Ohio. On September 29, 1904, and October 13, 1904, the assets of said firm were $9,329.75, and the liabilities, $29,399.95. The assets of said William G. Arend, individually and as surviving partner, on said September 29, 1904, and October 13, 1904, were insufficient to pay the debts of said partnership."
As conclusions of law from these facts the master found that the firm of Arend Bros. and William G. Arend, as surviving partner, and as an individual, were insolvent, and that the latter, as surviving partner, by joining in the application for the appointment of a receiver, committed an act of bankruptcy. The court below was unable to concur in these conclusions, and, holding that the surviving partner had not applied for a receiver, declined to adjudge him a bankrupt.
By the amendment of February 5, 1903 (chapter 487, § 2, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 683]) to clause 4 of section 3 of chapter 3 of the Bankruptcy Act (Bankr. Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422]), the following were made acts of bankruptcy:
"Being insolvent, applied for a receiver or trustee for his property, or because of insolvency, a receiver or trustee has been put in charge of his property under the laws of a state, or of a territory, or of the United States."
The application for the appointment of a receiver was made by the administrator of the deceased partner, under the provisions of sections 3167 to 3170, inclusive, of the Revised Statutes of Ohio of 1906, regulating the duties and rights of surviving partners. Under these provisions, when a partner dies, the surviving partner or partners shall make application to the probate court and have an inventory and appraisement of the assets of the partnership and a schedule of its debts and liabilities made, which shall be filed in the probate court. Section 3167. If the surviving partner neglect to have this appraisement made, the administrator or executor must. Section 3167. The surviving partner is given the right, upon certain conditions, to take the interest of the deceased partner at the appraised value, and, if he do not within 30 days from the filing of the inventory and appraisement, the executor or administrator "shall forthwith apply to a court of competent jurisdiction for the appointment of a receiver for said partnership, who shall thereupon proceed to wind up the partnership and dispose of the assets thereof." Section 3169.
On the day of the filing of the inventory and appraisement, the surviving partner filed the following waiver:
"Now comes William G. Arend, surviving partner of Arend Bros., and waives the time of thirty days within which to elect as to whether he will take interests of the deceased partner and partners of said firm, and he hereby elects not to take said interests of said deceased partner and joins in the application of Arthur G. Arend for the appointment by this court of a receiver at this time."
On the next day, because the surviving partner "had neglected or refused to take the interest of the deceased partner in the partnership
assets," the receiver was appointed, upon the application of the administrator, "to wind up said partnership and dispose of the assets thereof."
It is conceded that this was not a case where "because of insolvency a receiver has been put in charge of property," because clearly the receiver was not appointed because of insolvency, but because of the death of a partner and to wind up the partnership. In re Douglass Coal & Coke Co. (D. C.) 131 Fed. 769, 779; Blue Mountain Iron & Steel Co. v. Portner, 65 C. C. A. 295, 131 Fed. 57, 61; In re Spalding (C. C. A.) 139 Fed. 244. But it is submitted that, since the firm and the surviving partner were insolvent and the latter joined in the application, he "being insolvent applied for a receiver or trustee for his property," and therefore committed an act of bankruptcy. But, as held by the court below, the surviving partner never really applied for a receiver. He had no power under the Ohio statute to apply for a receiver. He had the option of taking the interest of the deceased partner at the appraisement. He had 30 days in which to exercise this option. He did not want the interest at the appraisement, so he waived the 30 days and immediately declared his intention of not exercising the option. When he had done this, he had exhausted the power conferred upon him by the statute. It then became the positive duty of the administrator to apply for the appointment of a receiver to wind up the business. This duty was discharged and the receiver was appointed on the application of the administrator and for the purpose of winding up the partnership.
NOTE. The District Court (per Tayler, District Judge), after stating the facts as found by the special master, said:
"The master found, as his conclusions of law from these facts, that Arend Bros. and William G. Arend, as surviving partner and as an individual, were insolvent on September 29, 1904, and October 13, 1904, and that William G. Arend, as surviving partner of the firm of Arend Bros., by joining in the application for the appointment of a receiver on September 29, 1904, committed an act of bankruptcy. The sole question therefore for the consideration of the court is as to whether the act of William G. Arend, in joining in the application for the appointment of a receiver, constituted an act of bankruptcy. The portion of the bankruptcy law by virtue of which the master came to this conclusion is paragraph 4 of section 3 of chapter 3, in which it is declared that it shall be an act of bankruptcy if the alleged bankrupt shall have 'made a general assignment for the benefit of his creditors, or, being insolvent, applied for a receiver or trustee for his property, or, because of insolvency, a receiver or trustee has been put in charge of his property under the laws of a state or territory, or of the United States.'
"It seems clear to me that the joining, by the alleged bankrupt, in the application for the appointment of a receiver by the probate court for the partnership assets belonging to a firm which has become dissolved on account of the death of one of the partners, is not an act contemplated or described by the provisions of the bankruptcy law which I have just quoted. The proceedings in the probate court were had in consequence of the law of Ohio which provides what shall be done when one member of a partnership dies. That law provides that an appraisement shall be made, and that, if the surviving partner or partners are willing to take the assets of the partnership at the appraisement, and give a satisfactory bond conditioned that the debts of the partnership will be fully paid, the surviving partner or partners may, on payment of the appraised value, take over the property. Now, a failure or refusal by the surviving partner to thus take the assets of the 146 F.-23