Ex parte Wong Jun

NETERER, District Judge (after stating the facts as above). Is the father a merchant within the provisions of the Exclusion Act? A manager may be said to be one who has general control over and conducts and directs the affairs of a concern, and has knowledge of all its business and property, and who can act in emei’geneies on his own responsibility. It affirmátively appears in the record that the father is- assistant manager; in the absence of the manager has entire control of. the concern. He does no manual labor. He orders goods, oversees and directs the business in the absence of the manager, and assists him when he is present. [503] This case is clearly distinguished from the Mak Fou Cho Case, supra. Chief Justice McCoy in that ease said the petitioner ¡i* * • ^ajjeg no part in buying and selling, and that his powers are not those of an assistant manager.” The department has, I understand, uniformly held heretofore that an assistant manager, as is the petitioner, is classed as a merchant. Two minor sons of the petitioner have heretofore been admitted and are now in the United States. The Exclusion Law defines the words “laborer” and “merchant.” Section 2, Act Nov. 3, 1893, 28 Stat. p. 7 (Comp. St. § 4324). “The words ‘laborer’ or ‘laborers’ * '* * shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation. * * * A merchant is a person engaged in buying and selling merchandise * * * and •i * * does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant.” The act-, for its purposes, divides the Chinese, except those who come to teach, study, travel, or for curiosity, etc., into two classes — “laborers,” those performing manual labor, excluded; “merchants,” those not performing manual labor, admissible. “Merchant,” as construed by the department and as employed in the act, is more comprehensive than the meaning given by lexicographers. The restricted meaning of “merchant” under the Bankruptcy Act (Comp. St. §§ 9585-9656) — Toxaway Hotel Co. v. Smathers & Co., 216 U. S. 439, 30 S. Ct. 263, 54 L. Ed. 558 — in view of the provisions of the Exclusion Act and department rule, obviously has no application. A hanker, by the department rules, is a “merchant.” By the same token the manager or assistant manager of a restaurant, who performs no manual labor, is a “merchant.” It seems obvious that the purchasing of supplies and selling them cooked, if the party does not do the manual labor of preparing them or serving them, is as truly merchandising as selling g*oods over the counter, or receiving money on deposit and selling exchange or discounting commercial paper. The acts of the petitioner in Ah Yow (D. C.) 59 F. 561, are not limited, as here, and therefore cannot be authority. It is not necessary that the partner’s name appear in the firm title. Tom Hong v. U. S., 193 U. S. 517, 24 S. Ct. 517, 48 L. Ed. 772. Motion denied, and writ granted.