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The plaintiff in error assigns errors heard on the charge, and in refusing certain requests for special charges.

After stating the issues contained in the pleadings, the trial judge gave the following charge. In paragraph 4 he said:

"A railway company is bound to use ordinary care to furnish safe machinery and appliances for use by its employés in operating its road; and. if ordinary and reasonable care is not exercised by the company to do this, it would be responsible to its servants for the injuries caused to them by such neglect. By ordinary care is meant such as an ordinarily prudent man would use under the same circumstances. It must be measured by the character and risks of the business; and when the person whose duty it is to repair the appliances and machinery of the business knows, or ought to know, by the exercise of reasonable care, of the defects in the machinery, the company is responsible for his negligence if he fails to repair it."

Fifth paragraph:

"If the jury believe from the evidence, under the foregoing instructions, that the boiler which exploded, and killed Charles T. Elliott, was defective and unfit for use, in the matters alleged by plaintiff, and that defendant's servants, whose duty it was to repair said machinery, knew, or by reasonable care might have known, of said defects in said boiler and engine, then said negligence on the part of its servant is imputable to the defendant. And if said boiler exploded by reason of said defects, and killed Charles T. Elliott, the defendant would be responsible to plaintiff for his death, if deceased in no way, by his own neglect, contributed approximately to his death. If, on the other hand, the jury believed from the evidence that the locomotive engine and boiler which exploded, and killed Charles T. Elliott, were reasonably safe appliances, and that the said Elliott, deceased, negligently let the water get too low in the boiler, and then negligently injected fresh water in the boiler, and thereby causing the explosion, then you will find for the defendant. An employer of labor, in connection with machinery, is not bound to insure the absolute safety of the mechanical appliances which he provides for the use of his employés; nor is he bound to supply for their use the best and safest or newest of such appliances; but he is bound to use all reasonable care and prudence for the safety of those in his service by providing them with machinery reasonably safe and suitable for use, and the like care devolves on the master to keep it in repair."

And, at the request of the plaintiff in error, the trial judge gave the following special instruction:

"No. 12. You are instructed that if you believe from the evidence that the explosion in question was caused by letting in of cold water upon a hot surface, and the consequent sudden generation of steam, to relieve which the safety valve was inadequate, you will find for the defendant."

Under the view which we have of the errors assigned by plaintiff in error, it will be necessary to quote and consider but the two following refused special instructions:

"No. 2. You are instructed that if you believe from the evidence that defendant used ordinary care in the selection of the engine in question, and used the same care in the selection of competent men to inspect it. and keep it in a reasonably safe condition, and if you believe from the evidence that the person so employed to inspect said engine and keep it in repair did exercise ordinary care and keep it in good condition, you will find for the defendant.

"No. 3. You are instructed, if you believe from the evidence that the defendant did employ a reasonably safe engine, and that he used reasonable care to employ a competent inspector to keep the said engine in good repair, and that he used reasonable supervision to see that such inspector performed his duty, you will find for the defendant."

Admitting that those two refused instructions announced correct propositions and rules of law applicable to the material issues of the case, the assignments are well taken, unless the matter therein contained, or the substance thereof, is covered by or in those two paragraphs we have quoted above from the trial court's charge; but the trial court's charge, disclosed in those several paragraphs, state the law applicable to the issues, and they seem to us to serve all the purposes that the counsel for plaintiff in error may reasonably have had in wanting the court to give his two special instructions. He concedes, in his brief, that the purpose of the plaintiff's evidence was to impose liability on defendant solely because said company, by reason of its failure to use reasonable care in keeping the machinery in good condition, allowed the boiler to become faulty and defective, and that defendant company knew, or should have known, by the use of proper inspection and supervision, of its defective condition, and further that said defendant was at fault and guilty of negligence in not having the said defective boiler seasonably repaired, and that Elliott, the engineer, was free from contributory negligence. The defendant's evidence was directed to the maintenance of the theory that the defendant company used ordinary and reasonable care in the selection of and furnishing to its employés the engine in question, and continued to use like care by prudent and reasonable supervision of the machinery, and by diligent inspections, made by the company's inspector, to keep the boiler in good repair; that the engineer was guilty of contributory negligence. It seems clear to us that the trial judge's charge drew the attention of the jury sharply to the adverse contentions, and announced correct propositions of law, which were applicable to the material issues of fact relied upon by either side to vindicate their respective contentions; and that his charge, clearly and substantially, covered all the purposes the counsel could reasonably have attained had the special instructions been given to the jury. Therefore, finding no error in the refusal of the trial judge to give the special instructions tendered by the counsel for plaintiff in error, the judgment of the circuit court is affirmed.

SPEER, District Judge, dissents.

In re WONG KIM ARK.

(District Court, N. D. California. January 3, 1896.)

No. 11,198.

CITIZENSHIP-Child of CHINESE PARENTS.

A person born within the limits of the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but, at the time of the birth, were both domiciled residents of the United States, is a citizen of the United States, within the meaning of the fourteenth amendment to the constitution of the United

States. In re Look Tin Sing, 21 Fed. 905, 10 Sawy. 353, and Gee Fook Sing v. U. S., 1 C. C. A. 211, 49 Fed. 146, 7 U. S. App. 27, followed.

Petition for a Writ of Habeas Corpus. Petition granted, and petitioner, Wong Kim Ark, discharged.

Thos. D. Riordan and Napthaly, Friedenreich & Ackerman, for petitioner.

H. S. Foote, U. S. Dist. Atty., and Geo. D. Collins, as amicus curiæ, for the United States.

MORROW, District Judge. A petition for a writ of habeas corpus was filed on behalf of Wong Kim Ark, alleging that said Wong Kim Ark is unlawfully confined and restrained of his liberty on board of the steamship Coptic, and prevented from landing into the United States, by John H. Wise, collector of customs at the port of San Francisco, and D. D. Stubbs, general manager of the Occidental & Oriental Steamship Company, acting under his authority. It is averred, further, that Wong Kim Ark has the right to enter the United States, because he was born within the United States, and is a citizen thereof. The district attorney has intervened on behalf of the United States, and objects to the discharge of Wong Kim Ark, upon the grounds that, although born within the United States, he is not, under the laws of the United States, a citizen thereof, for the reason that his father and mother were, at the time of his birth, and now are, Chinese persons, and subjects of the emperor of China, and that, therefore, Wong Kim Ark is also a Chinese person, and a subject of the emperor of China; that he is a Chinese laborer, and not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of congress, known as the "Chinese Exclusion Acts," which would exempt him from the class or classes which are specially excluded from the United States by the provisions of said acts. An amended petition has been filed, in which the detained himself petitions the court for a writ to test the legality of his detention. The amended petition sets out the facts of petitioner's detention, and his right to enter this country as a citizen thereof, more in detail than does the original petition; otherwise both are substantially the same. An agreed statement of facts has been filed, which is as follows: "(1) That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento street, in the city and county of San Francisco, state of California, United States of America; and that his mother and father were persons of Chinese descent, and subjects of the emperor of China; and that said Wong Kim Ark was and is a laborer. (2) That at the time of his said birth his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicile and residence therein at said city and county of San Francisco, state aforesaid. (3) That said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China. (4) That during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China. (5) That

ever since the birth of said Wong Kim Ark at the time and place hereinbefore stated and stipulated, he has had but one residence, to wit, a residence in said state of California, in the United States of America, and that he has never changed or lost said residence or gained or acquired another residence, and there resided, claiming to be a citizen of the United States. (6) That in the year 1890 the said Wong Kim Ark departed for China upon a temporary visit, and with the intention of returning to the United States, and did return thereto on the 26th day of July, 1890, on the steamship Gaelic, and was permitted to enter the United States by the collector of customs, upon the sole ground that he was a native-born citizen of the United States. (7) That after his said return the said Wong Kim Ark remained in the United States, claiming to be a citizen thereof, until the year 1894, when he again departed for China upon a temporary visit, and with the intention of returning to the United States, and did return thereto in the month of August, 1895, and applied to the collector of customs to be permitted to land, and that such application was denied upon the sole ground that said Wong Kim Ark was not a citizen of the United States. (8) That said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom."

The question to be determined is whether a person born within the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but at the time of the birth were both domiciled residents of the United States, is a citizen, within the meaning of that part of the fourteenth amendment of the constitution which provides that:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

The district attorney was assisted by Mr. George D. Collins, of the San Francisco bar, who appeared in the matter as amicus curiæ. Mr. Collins' position upon this question has been known for some time, and his views have been expressed in able and interesting articles in the American Law Review. 18 Am. Law Rev. 831; 29 Am. Law Rev. 385. He maintains that the doctrine of international law as to citizenship exists in the United States, and not that of the common law; that the citizenship clause of the fourteenth amendment is in consonance with the international rule, and should be so interpreted; and that, therefore, birth within the United States does not confer the right of citizenship. His views have been repeated and elaborated in his brief with much reasoning and plausibility. It is contended on the part of the United States that the words "subject to the jurisdiction thereof," mean subject to the political jurisdiction of the United States; that is to say, that the petitioner, Wong Kim Ark, though born within the United States, was not born subject to the political jurisdiction of the general government, for the reason that his father and mother were and are Chinese subjects, and that, according to the rule of international law, the political status of the child follows that of the father, and that of the mother when the child is illegitimate. It is urged, therefore, that the mere fact of birth in this country does not, ipso facto, confer any right of citizenship. The position contended for assumes, practically, that the provision of the fourteenth amendment under consideration intended to follow and adopt the rule of international law. In support of

this view, the remarks of Mr. Justice Story in Shanks v. Dupont, 3 Pet. 243, 247, are cited, to the effect that:

"Political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations."

It is contended, further, that the common-law doctrine does not govern the determination of the question of citizenship, for the reason that there is no common law proper of the United States; citing Wheaton v. Peters, 8 Pet. 658; Kendall v. U. S., 12 Pet. 524; Lorman v. Clarke, 2 McLean, 568, Fed. Cas. No. 8,516; U. S. v. New Bedford Bridge, 1 Woodb. & M. 401, Fed. Cas. No. 15,867; People v. Folsom, 5 Cal. 373; In re Barry, 42 Fed. 113. Finally, it is maintained that the United States supreme court, in interpreting the first clause of the fourteenth amendment, now in question, in the Slaughterhouse Cases, 16 Wall. 36, adopted, to all intents and purposes, the rule of international law when it said through Mr. Justice Miller:

"The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States."

The interpretation, by the supreme court, in the case of Elk v. Wilkins, 112 U. S. 102, 5 Sup. Ct. 41, of this same phrase is also cited in support of the contention made in favor of the rule of international law. On the other hand, counsel for petitioner contend that what the supreme court said in the Slaughterhouse Cases, supra, is but mere dictum, and that, outside of a few scattered observations of this character, that tribunal has never directly passed upon the question presented for decision in this matter, viz. whether a person born in this country of foreign parents is a citizen. But it is claimed that that question has been adjudicated in this circuit in two cases, and that the law, as there expounded, is in favor of the citizenship of the petitioner, and, being the law of this circuit, is controlling upon this court. The first of these, and the one which is principally relied on, is In re Look Tin Sing, to be found reported in 10 Sawy. 353, 21 Fed. 905, and decided in 1884. The second is the case of Gee Fook Sing v. U. S., reported in 1 C. C. A. 211, 49 Fed. 146, and 7 U. S. App. 27. The last case is a decision of the circuit court of appeals for this circuit (Ninth), rendered in 1892, which reaches the same conclusion as did the circuit court in Re Look Tin Sing. The case of Lynch v. Clarke, 1 Sandf. Ch. 583,-a decision rendered in 1844, and before the adoption of the fourteenth amendment, by Hon. Lewis H. Sandford, assistant vice chancellor of the First circuit of the court of chancery of the state of New York,--was also pressed upon the attention of the court as authority showing that it was the common-law doctrine of citizenship, and not that of the law of nations, which had been recognized in this country previous to the adoption of the fourteenth amendment. While the two decisions rendered in this circuit would seem, upon the principle of stare decisis, to be conclusive upon the question raised here, and controlling on this court, yet, in view of the fact that it has been argued on the part of the government, and very forcibly, that the supreme court laid v.71F.no.3-25

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