(after stating the facts as above). Section 13 of the act of September 13, 1888, c. 1015, 25 Stat. 479 [U. S. Comp. St. 1901, p. 1317], upon which this prosecution is based, provides that, upon the filing of an affidavit which charges that a person is a Chinese person, or person of Chinese descent, and that he is unlawfully in the country, a warrant may issue for the arrest of such person. Such process is operative not alone against Chinese persons, but against any person in the community, within the meaning of that word as used in the Constitution. Such person, under the provisions of the act, is then brought before a commissioner, and tried upon the issues raised by the allegations of the affidavit. If found guilty, the commissioner is empowered to make an order of deportation, the effect of which will be to remove such person to China.
•, In each of the causes which have been decided by the Supreme Court of the United States under this act the record has shown that the person objecting to the constitutionality of the act was admittedly a person of Chinese descent. The consideration which I have given to the act is from the standpoint of those other than Chinese persons who are entitled to the protections guarantied by the Constitution, and who are the real objects of the inherent menace of prosecutions of this character.
*201While it may be readily understood that it rests within the sovereign power of the government to exclude aliens, and prevent their entry into the country, and that such exclusion of an ascertained or admitted alien in no way violates any of the provisions of the Constitution, it is also easy to be recognized that to arrest and put upon trial any person within the body of the country, by the process of affidavit and warrant, in the manner provided by the statute, upon the charge that such person is a prohibited alien, and therefore subject to the penalty of deportation — which would be banishment if the person is a citizen- — is an encroachment upon such person’s constitutional rights, unless it be assumed that the mere fact of arrest is conclusive proof that the person arrested is such prohibited alien.
I therefore hold that so much of the act of September 13, 1888, as provides for arrest and trial before a commissioner, or on appeal to a federal judge, upon the filing of an affidavit, is unconstitutional, because the act in no wise provides for those protections guarantied by the Constitution to persons within the United States.
The defendant is discharged.