which the arrest was made, and rights, which it was competent for congress to protect by legislation in a proper form, under the clause cited, which authorizes it "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by this constitution in the government of the United States or in any department thereof." And it was its imperative duty to protect such rights. Thus the case of the Chinese residents of Nicolaus is clearly distinguishable from that of United States citizens arising under the fourteenth amendment, considered in the case of United States v. Harris, supra, and rests upon other and further provisions of the national constitution. Had section 5519 been expressly limited in terms without including any other parties to a conspiracy for depriving, directly or indirectly, Chinese subjects residing in the United States of the "equal protection of the laws," or of "equal privileges and immunities under the laws," guaranteed to them by the treaties, there could, scarcely, be a doubt, I think, of its constitutionality and validity. If, therefore, it be void, as to the Chinese subjects affected by the acts charged, as well as to similar acts, perpetrated upon citizens of the United States, it is only so, because congress has attempted to accomplish too much in the same section, by the use of language too comprehensive, including persons to whom these powers did not extend, and by so doing has vitiated the whole. It is not because the language does not include them, or for want of constitutional power, but for want of proper form in the provision-because it is too broad; simply because it has spread too large a net. But Chinese subjects residing in the United States, under the stipulations of our treaties with China, constitute a separate, distinct, independent class, with distinctly defined and easily recognized limits; and it is not readily perceived, why the class may not be easily segregated and the provisions of the statute held constitutional and valid, and be fully enforced as to that class, even though void as to other persons and classes, relying on other provisions of the constitution, easily recognized, and without difficulty segregated.

Why should not the principle adopted in Packet Co. v. Keokuk, affirmed in Presser v. Illinois, at the present term of the supreme court, apply? The Chinese residents under the treaty, may be regarded as a subject-matter entirely distinct from citizens of the United States. The provisions of the section as to the states, and as to the territories, operate, certainly, upon distinct subjects-matter, and the act, I take it, could, and would, be held valid under the authorities cited, as to the territories, even though void as to the states and their citizens. They are easily segregated, then why cannot the Chinese residents as one subject-matter be separated from citizens as another, upon similar principles?

The language of the court in United States v. Harris on this point should, doubtless, be considered with reference to the special facts of the case then in judgment. But still, it must be confessed, that it is very broad, and the rule laid down, may be intended to cover any case

that can be brought within the terms of the statute. If so, of course, the ruling is authoritative and controlling in this court. But like congress, in the language of section 5519, may not the court also have, inadvertently, used language broader than the exigencies of the case before it required?

It is proper to observe, that in the case of Reese, there was a defect in the statute, and, also, in the indictment, in the omission of one constitutional element, or ingredient necessary to constitute the offense. Under the fifteenth amendment then in question, it was necessary that the discrimination should be "on account of race, color, or previous condition of servitude." This essential element was omitted in the act, and in the indictment, and the court could not perfect the statute or indictment by inserting it. It was with special reference to this omission, that the court made the observations in respect to separating the constitutional, from the unconstitutional, part of a provision so manifestly indefinite, afterward repeated in United States v. Harris, with reference to the thirteenth amendment. To the provisions and facts then under discussion, the observations seem to me to be more appropriate, than to the sections of the statutes, constitutional provisions, and the facts, as now presented. It must be remembered that section 5519, has thus far, only been considered by the supreme court, with reference to the authority conferred upon congress by the thirteenth, fourteenth, and fifteenth amendments relating to specific subjects-matter. It has never yet been considered with reference to the powers conferred by the more general and comprehensive clauses cited in this opinion from the constitution, as, originally, adopted. The difference between the cases is very obvious, and the result arising upon the different conditions may, and, it seems to me should, be entirely different.

The only difficulty I have, is, in satisfactorily determining, whether the rule indicated in United States v. Harris, or that in Packet Co. v. Keokuk, supra, relating to the segregation of the constitutional from the unconstitutional parts of the section should be applied to the facts disclosed in the petition, writ, and return in this case. I can perceive no practical difficulty in applying the rule adopted in the latter case. If there is none, it should be applied. The specific question is one of vast consequence to the entire Chinese population of the United States, and of the utmost importance to the peace and good order of society, throughout the entire Pacific coast. It is of international consequence, involving the honor and good faith of the United States, and possibly the question of peace or war. If this section of the statute is valid, as to Chinese subjects residing in the United States, and embraces the acts set out in the petition and return, then the acts of all the public meetings throughout the land looking to, and providing for depriving Chinese subjects of the rights, privileges, immunities, and exemptions, secured to them by our treaties with China, by means, popularly known as "boycotting," or any other coercive means, no matter in what form, or through what channels applied, are criminal, and all those

participating in them, must be subject to the very severe penalties denounced by the statute. I can perceive no way of escaping this conclusion. The depriving of persons of any of the rights protected, by any means, either "directly or indirectly," is prohibited. Where one has a lawful right to do any given thing, it would seem that no body of other persons can, properly or lawfully, combine or conspire together to use coercive means, in any form, to prevent him from doing that thing. The two rights are inconsistent, and cannot properly co-exist. It can make no difference in principle whether the coercion is applied by direct force, or by combined and concerted action, to prevent him from exercising his right, by depriving him of the means of procuring a livelihood, and thereby inducing starvation, or even less serious consequences.

If the statute in this particular is not valid, then there are no means now provided by congress of protecting Chinese subjects in the enjoyment of the rights secured to them by the treaties through the criminal laws of the country, unless the acts are within the provisions of section 5508, or 5336, R. S., and if there is no statute covering the case then the government has not yet fulfilled its treaty obligations under article 3 of the treaty of 1880. I shall not stop to discuss section 5508, and only remark that section 5336 provides that: "If two or more persons in any state or territory conspire to overthrow, put down, or destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States, contrary to the authority thereof; each of them shall be punished by a fine of not less than five hundred dollars and not more than five thousand dollars, or by imprisonment with or without hard labor, for a period of not less than six months nor more than six years, or by both such fine and imprisonment."

A treaty, says the constitution, is a part of "the supreme law of the land." It has been insisted, that the acts set forth in the petition, constitute a conspiracy by force to prevent, hinder, or delay the execution of the treaty stipulations, or obstruct their operation, which, it is said, is equivalent to obstructing its execution, and, therefore, of obstructing the execution of a law of the United States." If this be so, then the acts charged constitute an offense against the United States under this section, as well as under section 5519. I am officially informed that thirteen persons have just been indicted under this section in one of the states of this circuit. But it seems to me that the acts are not so manifestly within the provisions of this section and section 5508 as within section 5519.

The specific questions now presented are questions of too vast consequence to be finally determined by a subordinate court. The peace and good order of the Pacific coast and the honor and good faith of the nation are involved and require that the question should be at once

presented to and promptly decided by the supreme court of the United States.

The supreme court in United States v. Harris, supra, says: "Proper respect for a co-ordinate branch of the government, requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional powers. This presumption should prevail, unless lack of constitutional authority to pass the act in question is clearly demonstrated:" p. 635.

If there be any doubt, then, as to the constitutional authority of congress to pass section 5519, in its present comprehensive form, so far as it embraces the specific facts disclosed in this case, which have not yet been considered by the supreme court, or as to the applicability of the observations of the supreme court in relation to separating the constitutional from the unconstitutional parts of the act, to the specific facts now presented-the only point upon which I entertain any doubt -the doubt should be resolved, especially in this court, in favor of the validity of the statute in this particular, and the question be referred at once to the supreme court, to be authoritatively determined.

As there is doubt in my mind upon the point suggested under the authorities as they now stand, I shall for the present, and for the purposes of this case, rule against the petitioner, remand him to the custody of the marshal, and dismiss the writ.

I do not desire, however, to be considered as finally determining the question in such sense, that it will not be open for reconsideration, should the question be again presented in other cases, before an authoritative decision can be had in the supreme court.

My associate, though with doubt and hesitation, dissents from the rulings made and a certificate of opposition of opinion will be made if either party desires it, and a writ of error to the supreme court allowed. In view of the circumstances and of the doubts entertained, should a writ of error be taken, the prisoner will be allowed to go at large on his own recognizance, until the decision on appeal. And in case the writ is pressed to an early hearing, it is suggested that the government do not prosecute other similar cases arising under the revised statutes, especially such as have already arisen, until an authoritative decision can be had.

Let the writ be dismissed, and the prisoner remanded to the custody of the marshal.

CIRCUIT COURT, DISTRICT OF COLORADO.

HOWARD ET UX. v. DENVER AND RIO GRANDE RAILROAD COMPANY. March 23, 1886.

NEGLIGENCE-COLLISION BETWEEN TRAINS-FELLOW-SERVANTS.-In case of collision between a train and an engine on a railroad, the negligence of the engineer in the management of the engine, whereby injury results to the employees on the other train, is to be regarded as the negligence of a fellow-servant, and not as the negligence of the employer.

MOTION for new trial. The opinion states the facts.

Rogers & Cuthbert, for the plaintiff.

E. O. Walcott, for the defendant.

BREWER, C. J. This is a motion for a new trial, which, by the direction of the trial judge, has been referred to me for decision. As I was not present at the trial, I feel at liberty to consider only the principal question upon which the ruling of the trial judge was made. The facts which present that question are these: The plaintiffs are the parents of one John H. Howard, who, on May 19, 1883, was killed in a collision on defendant's road. Young Howard was employed as a fireman, working on the regular passenger train running west on that day from Pueblo to Leadville. That train was running on schedule time, and about a quarter of a mile west of Badger station collided with a light engine running eastward, under the management and control of one William Ryan, its engineer. Ryan neglected his instructions, and his negligence was the proximate cause of the collision.

There was no proof of incompetence on his part, or of negligence in employing him, or in the order under which he was acting and which he disobeyed. The case rested simply on the fact of his negligence. The trial judge held that his negligence was the negligence of the company, and that he was not a fellow-servant with the deceased.

This, then, is the single question presented. The rules of the company provided that an engineer running a light engine like this, without any separate conductor, should be regarded as both engineer and conductor. The question, therefore, is distinctly presented whether in case of collision between a train and an engine, the negligence in the management of the engine, whereby injury results to the employees on the other train, is to be regarded as the negligence of the company or simply the negligence of a fellow-servant. Obviously, the question is of no slight importance.

It will not be doubted that the early current of judicial decision in this country was such as to affirm that employees, situated as Ryan and the deceased, were fellow-servants. The great and leading case was that of Farwell v. Boston and Worcester R. R. Co., 4 Met. 49, in which the opinion was written by Chief Justice Shaw. He there stated the rule to be that all persons employed by the same master, and engaged in a common enterprise, were fellow-servants, no matter what the relation in which they stood to each other. This case was generally fol