Lai Moy v. United States

After making statement of the case above, McKENNA, Circuit Judge, delivered the following opinion: The assignments of error, as said by appellant’s counsel, present two points: “First, the act of congress of November 3, 1893, requiring a resident Chinese merchant to establish his status in a certain way, and by a particular kind of proof, does not apply to the case of this petitioner, who departed from the United- States prior to the enactment of the law; and, second, the evidence does not warrant the conclusion that the petitioner was not a resident Chinese merchant, within the meaning of the act of November 3, 1893, and the various restriction acts amended thereby.” The first point we had occasion to consider and pass upon in Lew Jim v. U. S., 66 Fed. 953, and we decided that the act of congress did apply to merchants departing prior to its enactment. The point, therefore, is not well taken. We think that the second point is also untenable. It will be observed that the definitions of the act are very careful and confined, and we may not enlarge them. The designation “merchant” does not include, comprehensively, all who are not labor [957] ers, but strictly "a person [to quote the act] engaged in buying and selling merchandise.” To fabricate merchandise, as appellant did, is not to buy and sell it. Nor may both be done, for the “merchant” may not (again to quote the act) “engage in the performance of any manual labor except such as is necessary in the conduct of his business as such merchant,” — that is, in buying and selling merchandise; and the manual labor which is precluded is skilled as well as unskilled. One-half of appellant’s time was engaged in cutting and sewing garments. This was manual labor not necessary in the buying and selling of merchandise. If we may indulge this, we may indulge more, and all artificers would be excluded from the act provided they worked for themselves or mingled with their proper work any traffic in merchandise. We think, therefore, that the judgment of the district court was correct, and it is affirmed.