delivered the opinion of the court.'
This is a petition for a writ of mandamus, commanding the judge of the District Court of the United States for the Northern District of Ohio to direct the entry on the records of that court of final judgment in the cases of The United States v. Jock Coe, Bong Meng, and Woo Joe, and that the clerk enter the same; and that the .cases be-treated as properly appealed from the United States commissioner before whom they, had been heard in the first instance and as having been before the District Court for determination. The complaint against Coe was made before a United States commissioner for the Northern District of Ohio, charging that Coe, a Chinese person, was within -the United States at Cleveland,. Ohio, contrary to law, and a warrant was duly issued and executed, whereupon the commissioner found Coe guilty and ordered him to be deported.
Leave having been granted to file the petition and a rule having been entered thereon, return thereto has been duly made. The return of the judge states that in the proceedings against Coe, which were described in the bill of exceptions, a copy of which was attached to the petition for mandamus as an exhibit, he had denied as judge the order applied for, although he had allowed an appeal of the cause to the Supreme Court of the United--States; that he had adopted this course because he was of opinion that section thirteen gave jurisdiction on appeal to respondent as judge, but did not give
It seems that the judge allowed a writ of error, but only to - his action as judge, and even if. it could be held to run to the District Court, it would be equally unavailing in the absence of final judgment in that court and of the filing of the bill of exceptions. As we understand this record, if the appeal from the commissioner under section' 13 was an appeal to the District Court, then it follows that the commissioner’s transcript and other papers pertaining to the case should be filed and the' judgment be entered in that court, and an appeal will bring the cause before us. In other words, the District Court will not-have lost jurisdiction because of the view taken by .the District Judge, and the final order may be entered as the final judgment of the court.
Section 13 of the act of September 13, 1888, 25 Stat. 476, c. 1015, provides: “That any-Chinese person, or’person of Chinese descent, found unlawfully in the United States, or its Territories, 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, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States coui-t, 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, such person shall be removed from the United Slates 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 conviction, appeal to the judge of the District Court for the district.”
Many cases may be found in which the words “court'!’, and “ judge ” were held to have been used interchangeably, and in
In Porter ads. United States, 2 Paine, 313, Judge Betts said: “It is not an unusual use of language, in the statutes, to put the judge for the court, and to make provisions for him to execute which can only be executed in court.” It was held that a statute authorizing a party “to prefer a bill of complaint to any District Judge of the United States,” referred to the District Court and not to the judge as an individual.
The construction put upon section thirteen in practice has been quite general that the appeal to the District Judge is in effect an appeal to the District Court.
In 1892 the Circuit Court of Appeals for the Ninth Circuit so held, in United States v. Gee Lee, 50 Fed. Rep. 271, and that the Circuit Court of Appeals had jurisdiction over the judgment of the District Court under section sixr of the judiciary act of March 3, 1891. The Circuit Court of Appeals was of opinion that the words “the judge of the District Court for the district” could and should be held equivalent to the words “the District Court for the district,” and that, while they were not, strictly speaking, convertible terms, they were so in a popular sense; “and it is safe to assume that Congress, in the use of the former phrase in this section, intended to give the party an appeal to the District Court of the District.”
In United States v. Pin Kwan, 100 Fed. Rep. 609, decided Februarjr 28, 1900, the Circuit Court of Appeals for the Second Circuit sustained a writ of error to review the decision of the District Court, (94 Fed. Rep. 824,) in which an order of deportation by a United States commissioner had been reversed by the District Court. Of course the Circuit Court of Appeals took jurisdiction on the theory that the statute provided for appeals from the commissioner to the District Court. And see United States v. Ham Toy, 120 Fed. Rep. 1022.
In United States v. Mrs. Gue Lim, 176 U. S. 459, decided Febrúary 26, 1900, this court entertained jurisdiction of several distinct appeals from the District Court for the District of Washington, In the case of Mrs. Gue Lima warrant had been issued and her discharge ordered by the District Court, but in the other cases the proceedings were had before a United States commissioner, and from his judgment of deportation the cases had been taken to the District Court, which reversed his decision. The judgments of the District Court were affirmed by this court.
By the first section of the act of April 29, 1902, 32 Stat. 176, c. 641, section. 13 of the act of 1888 was, together with some other sections, reenacted, and we think it not unreasonable to conclude that Congress accepted the view we had indicated, and by its action removed any doubt on the question.
Shortly after the approval of that act, in Chin Bak Kan v. United States, 186 U. S. 193, we took jurisdiction of an appeal from the judgment of the District Court for deportation on an appeal- from the United States commissioner to the District Court of the United States- for the Northern District of New York, and we observed: “Something is said in respect of want of jurisdiction in the commissioner because section six of the act of 1892 provides that Chinese laborers without certificates, may be ' taken before a United States judge;’ but' we concur in the views of the Circuit Court of Appeals' for the Ninth Circuit” in Fong Mey Yuk v. United States, 113 Fed. Rep. 898, that the act is satisfied by proceeding before ‘ a justice, judge, of commissioner.’ These are the words used in section twelve of the
In the cases of Ah How v. United States, 193 U. S. 65, and Tom Hong v. United States, 193 U. S. 517, decided at this term, we disposed of sundry appeals from a District Court to which the cases had been brought on appeal from a United States commissioner. Our .jurisdiction was directly challenged by the government and attention was called to the conflicting decisions of the Circuit Courts of Appeals for the Ninth Circuit in United States v. Gee Lee, and for the First Circuit in Chow Loy v. United States, on the question whether the appeal, was to the District judge o,r to the District Court, but we maintained jurisdiction and affirmed the judgments of the District Court in some of the cases, and reversed the judgments and discharged the appellants in others. In these cases the District Court would not have had jurisdiction if the statute confined appeals from the commissioner to appeals to the judge individually.
While it must be admitted that the proper construction of section 13 is not free from difficulty, we are-not willing to. change the construction we have heretofore repeatedly recognized as correct, and which we think has been adopted by Congressional legislation. That construction enables uniformity in the administration of the laws- .on this important subject to be attained by securing uniformity, in judicial decision, and' operates as a safeguard against injustice.
We assume that the other two cases are in substance the . same as that of Coe.
The result is that we hold that the relief sought should be granted, but as we do not doubt it will be accorded on the expression of our conclusion, the order will be.
Petitioner entitled to mandamus as prayed.