United States v. Durie

170 F. 624, 1909 U.S. Dist. LEXIS 287

• Court: District Court, E.D. Pennsylvania
• Decided: May 14, 1909
• Docket: No. 17
• Status: Published

Opinion

J. B. McPHERSON, District Judge.

It may be, that the argument now made by the government in support of the proposition that section 2 of the Chinese exclusion act of 1882 (Act May 6, 1882, c. 126, 22 S.tat. 59), as amended by the act of 1884 (Act July 5, 1884, c. 220, 23 Stat. 115 [U. S. Comp. St. 1901, p. 1306]), was not impliedly repealed by the act of 1888 (Act Sept. 13, 1888, c. 1015, '§ 9, 25 Stat. 478 [U. S. Comp. St. 1901, p. 1316]) was not presented to Judge Cross in the district of New Jersey before he decided, in United States v. Wood, 168 Fed. 438, that such repeal had taken place. I accept the statement in the government’s brief that the argument now offered is made for the first time; but this does not change the fact that I am asked, in effect, to review Judge Cross’s decision and to say tliat lie would perhaps, or probably, have reached a different conclusion if he had taken into account the considerations that have been presented to me. It is clear, however, that, although the argument now made on behalf of the government may not have been presented to Judge Cross by counsel, it may have occurred to his own mind, and may have been rejected as not persuasive. But, without laying any weight on this possibility, I think it is enough to say that, in my opinion, the proper tribunal to review the ruling in United States v. Wood is the Circuit Court of Appeals or the Supreme Court. It is true that I am not bound by the decision of another District Court; but, however freely the right of dissent may in general be exercised, I think there are obvious reasons why dissent in the same circuit should be avoided as far as possible.

Followdng, therefore, the decision in United States v. Wood, the demurrer to the present indictment is sustained.