and yet cannot be rejected. I can only express | and that it should have been, as in the Act of
the hope, in view of the difficulty, if not impos- 1882, "and who should produce the certificate,
sibility, of enforcing the exclusion of Chinese
laborers intended by the Act, if parol testimony
from them is receivable, that Congress will, at
an early day, speak on the subject in terms
which will admit of no doubt as to their meaning.

Mr. Justice Bradley:

I concur with Mr. Justice Field in dissenting from the judgment of the court in this case. It seems to me that both the Act of 1882 and the Act of 1884, when carefully examined, require that a Chinese laborer should present the certificate which those laws prescribe in order to be entitled to the privilege of landing or coming into the territory of the United States.

etc.," which, by the familiar rule of construction for changing "or" into "and," and vice versa, is admissible, and in this case is required to prevent a palpable incongruity. When those are exempted who were here in November, 1880, or came here before the expiration of ninety days from the passage of the Act of 1882, It would be incongruous to add, as an additional and separate class, those who should present a certificate; for no others could get a certificate. This incongruity, as well as the general tenor of the Act, make it clear that the clause of exemption should be read conjunctively as in the Act of 1882. And, taking the whole Act together, it seems to me perfectly clear that it requires a certificate in all cases. By the 12th section it is declared that no Chinese person shall be permitted to enter the United States, by land, without producing to the proper officer of customs the certificate required of those seeking to land from a vessel; showing that no exceptions were to be made; but that everyone coming into the country, in whatever way or by whatever route, must have a certificate.

It may be that this view of the law makes it

has shown strong reasons to the contrary; but
whether it does so or not I think it is the true
construction; and the rule is now settled that
Congress may, by law, overrule a treaty stipu-
lation; although, of course, it should not be
done without strong reasons for it; and an Act
of Congress should not be construed as having
that effect unless such be its plain meaning.
Thinking, as I do, that the Act in question can-
not be fairly construed in a different sense from
that which I have indicated, I cannot concur
in the judgment of the court.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

GEORGE W. MIDDLETON, Piff. in Err.,

By the Treaty with China, adopted November 17, 1880, but not proclaimed until October, 1881, it was agreed that the United States might limit or suspend the coming of Chinese laborers into or their residence in the United States; but it was provided that those who were then in the country should be allowed to go and come of their own free will and accord. The Act of May 6, 1882, prohibited their coming into the country for ten years after the expiration of ninety days from that date; but exempt-conflict with the Treaty; though Justice Field ed from the prohibition those who were in the United States at the date of the Treaty, November 17, 1880, or who should have come into the same before the expiration of ninety days from the passage of the Act, and should produce the evidence, required by the Act, of being in the excepted class. This evidence was a certificate [579]of identification, analogous to a passport, to be given to any laborer leaving the country and desirous of returning, by the collector of the port from which he sailed. Without such a certificate he was not permitted to return to the United States. Of course, those who had already left the country before the law was passed could not have such certificates, and their condition is what produces the controversy. From the supposed hardship of their case the Circuit Courts of the United States gave a construction to the law which let them come in on parol proof of their former residence here. This was calculated to produce great abuses, for Chinese of the lower class have little regard for the solemnity of an oath. Congress passed another Act July 5, 1884, amendatory of the first Act, by which it was declared, sec. 4, that the "Said certificate shall be the only evidence permissible to establish his right of re-entry" (referring to the person who should receive such a certificate); and that masters of vessels arriving at any port with Chinese on board, should, before they would be permitted to land, deliver to the collector a list exhibiting their names and other particulars as shown by their respective certificates. But the exemption clause of this Act, sec. 3, declaring who should be exempted from the prohibition to come into the United States, by some inadvertence was expressed in the disjunctive, namely: that the Act should not apply to those who were in the United States on the 17th of November, 1880, or who should have come into the same before the expiration of ninety days from the passage of the Act of 1882, nor to those who should produce the certificate before mentioned. The whole tenor of the Act shows that this was an inadvertent expression

v.

INHABITANTS OF THE TOWNSHIP OF
MULLICA, COUNTY OF ATLANTIC.
(See S. C. " Middleton v. Mullica," Reporter's ed.,

433-439.)

New Jersey Act authorizing town bonds for
bounties, construction of.

strued, to the effect that it authorized certain town-
*An Act of the Legislature of New Jersey con-
ship officers to execute bonds for the township to
raise money for bounties to volunteers.
[No. 21.]

Argued Oct. 17, 20, 1884. Decided Dec. 8, 1884.
IN ERROR to the Circuit Court of the United

States, for the District of New Jersey.
The history and facts of the case appear in
the opinion of the court.

Messrs. F. Carroll Brewster and F. C.
Brewster, Jr., for plaintiff in error.

Mr. Peter L. Voorhees, for defendants in
error.

Mr. Justice Bradley delivered the opinion of the court:

[580]

This is an action of debt brought in the court below, to recover the amount or six bonds or [434] alleged bonds of the Township of Mullica, in Head note by Mr. Justice BRADLEY.

To show that the bonds were executed by lawful authority, the plaintiff read two Acts of the Legislature of New Jersey. The first, approved March 4, 1864, was entitled "An Act to Legalize Certain Acts of the Township of Mullica, in the County of Atlantic, Relative to Raising Money to Pay Bounty to Volunteers and to Provide for the Payment of the Same," and recited and enacted as follows:

"Whereas, the Inhabitants of the Township of Mullica, in the County of Atlantic, did, on the first day of January, Anno Domini 1864, vote to pay a bounty of $225 to each person volunteering to fill the quota of said Township under the calls of the President of the United States (the said quota being thirty-four); and whereas, the said inhabitants having no authority, under the laws of the State, to offer said bounty or borrow money for the payment of the same; therefore, 1. Be it enacted by the Senate and General A8- [436] com-sembly of the State of New Jersey, That the said Township of Mullica be authorized to provide for the payment of said bounties, the sum of $7,650, and the interest thereon, by the issuing of their bonds, or township orders, bearing interest at the rate of six per centum per annum, and payable at such times as the township committee of said Township may determine; Provided, that not less than $1,500 nor more than $2,500 shall be raised for the purpose of paying said bonds or orders in any one year, including the interest thereon.

seers of the poor, constables, and a judge of the bond book of the Township may be entitled
election; and in addition to these officers, all to much weight. It professes to exhibit the
having their appropriate duties to perform, they "Issue of bonds by the Township of Mullica in
are also, by special provision, authorized" To pursuance of a resolution adopted January 1,
elect five judicious freeholders, resident within 1864;" and it enumerates in that category the
the township, who shall be denominated the bonds in question in this suit. That it is to say,
township committee, a majority of whom shall the township book declares and shows that the
be a quorum, and shall continue in office one bonds in suit were issued in pursuance of a reso-
year and until others are chosen in their stead, lution adopted January 1, 1864; and this decla-
which committee shall have authority, and it is ration stood there on the book from 1864, when
hereby rendered their duty to examine, inspect the bonds were issued, until the trial of the suit
and report to the annual or other town meet-in 1871. The resolution thus referred to must,
ings the accounts and vouchers of the township
officers, and to superintend the expenditure of
any moneys raised by tax for the use of the
township, or which may arise from the balance
of the accounts of any of the township officers."
Besides the duties here specified, the township
committee is invested with certain other powers,
such as, in certain cases, to fill vacancies in the
other township offices caused by death, removal,
refusal to serve, etc., and to call special town
meetings when they may deem it necessary;
but they have no general authority to act for
the Township. This must be conceded; and it
is clearly shown by the cases cited by the coun-execution and issue of such bonds by the town-
sel for the defendant.

At the same time it must be admitted that, in view of the peculiar functions and duties of the township committee, they are altogether the most appropriate officers of the Township for the performance of such a duty as the issuing of township bonds, whenever such bonds are authorized to be issued, since the township itself has no permanent presiding officer or head, but only a temporary chairman, called a moderator, who simply presides over the town meeting by which he is appointed. The question then arises: did the Act of March 4, 1864, give the township committee authority to issue the bonds in question? If the Act is carefully examined, it will be seen that it not only ratified the proceedings [438]of the town meeting held on the 1st of January, 1864, voting a bounty of $250 to each person volunteering to fill the quota of the Township, but that it authorized the Township to provide for the payment of said bounties by issuing its bonds at six per cent interest payable at such times as the township committee might determine. It ratified what had been resolved by the town meeting, and authorized the issue of township bonds to carry that resolution into effect. The question then arises: who were the proper persons to issue the bonds? The town meeting itself certainly could not do it. Is it not the plain inference of the statute that the bonds should be issued under the direction and supervision of the township committee, as they were to fix the time of payment, and were the only body which had the general superintendence of the township finances?

And here it is proper to notice that the proceedings of the town meeting on the 1st of January, 1864, were not given in evidence. Of course, the defendants had them in their possession and could have produced them. We only know so much of said proceedings as is recited in the Act of the Legislature. It is possible that the town meeting, besides voting the bounties referred to in the Act, directed the township committee, as would be natural, to issue the obligations of the township for the purpose of raising the money requisite to pay such bounties. On this point,

of course, have been part and parcel of the pro-
ceedings relating to bounties to be paid to volun-
teers, which were ratified by the Act of March
4, 1864.

Taking all these things together, we are satis-
fied that, by the said Act, which ratified the said
proceedings, expressly including, as it does, the
acts and doings of the township committee, as [439]
well as of the Inhabitants of the township, and
authorizing the issue of bonds to carry out their
intentions, with such time of payment as the
township committee should determine, it was
the intention of the Legislature to authorize the
ship committee.

There can be little doubt that this conclusion
is in accordance with the justice of the case.
Money was raised on these bonds. The plaint-
iff testified that he purchased them for value,
of Crowley, the payee, and received them from
Crowley or Henderson or McKean, he could
not recollect which. Evidently, the township
officers were concerned in the transaction. At
all events the plaintiff purchased them and paid
for them; and they were duly entered in the
township bond book as bonds of the Township,
and there can be little doubt that the Township
reaped the benefit of the transaction. We have
no doubt that they are the valid obligations of
the township, and that the court below erred in
ruling them out, and in directing a verdict for
the defendant. They ought, at least, to have
been given to the jury under the evidence in the
case.

The judgment of the Circuit Court is reversed
and the case is remanded, with directions to award
a venire facias de novo.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.
Cited-113 U. 8., 7.

CHICAGO, MILWAUKEE AND ST. PAUL
RAILWAY COMPANY, Piff. in Err.,

DUANE O. ROSS.

(See S. C., Reporter's ed., 877-396.)
Master and servant-who is fellow-servant-en-
gineer of railroad train―liability of master.

1. A conductor, having the entire control and
management of a railway train, is not a fellow-serv
ant with the firemen, the brakemen, the porters and
the engineer of the train: as to them and the train,

NOTE.-Who are co-employés or co-servants within the rule that a master is not responsible for injuries ant. See note to Hough v. Tex. & Pac. R. R. Co., to a servant occasioned by the negligence of a co-serv 100 U. S., XXV., 612.

The judgment in this case should be susMr. John W. Cary, for plaintiff in error: tained on the ground that the plaintiff in error The court erred in charging the jury that the exposed the defendant in error to perils and plaintiff, the engineer, and McClintock, the con-hazards against which it might have guarded ductor, were not fellow-servants or co-employés by proper diligence. engaged in the same general business.

On the trial, the conductor of the gravel train testified that at the time of the collision he was under orders to run to South Minneapolis regardless of the plaintiff's train; that, having twelve cars loaded with gravel, his train stalled before reaching the cut where the collision happened; that he then separated his train in the middle, took six cars to Minnehaha Station, went back with the engine for the other six cars and was coming with them through the cut when the collision occurred; that the gravel train had run in the night about a week, and that when he could reach Minneapolis before the starting time of plaintiff's train he ran without orders, otherwise upon orders, and had met or passed plaintiff's train at the same place about every night during the week.

Corporation created under the laws of Wiscon- | upon the plaintiff severe and permanent in-
sin. This action is brought to recover damages juries, for which he brings this action.
for injuries which the plaintiff sustained whilst
engineer of a freight train by a collision with a
gravel train on the 6th of November, 1880. Both
trains belonged to the Company, and for some
years he had been employed as such engineer on
its roads. On that day, he was in charge of the
engine of a regular freight train which left Min-
neapolis at a quarter past one in the morning,
its regular schedule time, and had the right of
the road over gravel trains, except when other-
wise ordered. At the time of the collision, one
McClintock was the conductor of the train and
had the entire charge of running it. It was his
duty, under the regulations of the Company, to
show to the engineer all orders which he re-
ceived with respect to the movements of the
train. The regulations in this respect were as
follows: "Conductors must in all cases, when
running by telegraph and special orders, show
the same to the engineer of their train before
leaving stations where the orders are received.
The engineer must read and understand the
order before leaving the station. The conductor
will have charge and control of the train and of
all persons employed on it and is responsible for
its movements while on the road, except when
his directions conflict with these regulations, or
involve any risk or hazard; in which case the
engineer will also be held responsible."

the delay or to put out signals of danger.
Having, for the week previous, passed the
freight train at nearly the same place on the
road, he must have known that by the delay
there was danger of collision. Ordinary pru-
dence, therefore, would have dictated the send-
ing forward of information of his position or the
putting out of danger signals. Had he done
either of these things, the collision would not
have occurred.

(382]

It is evident from this brief statement that the conductor on each train was guilty of gross negligence. The conductor of the freight train was not only required by the general duty devolving on him, as one controlling its movements, to give to its engineer such orders as would enable him to avoid collision with other cars, but, as we have seen, he was expressly directed by the regulations of the Company, when running by telegraph or special orders, to communicate them to him. Had these regulations been complied with, the collision would have been When the freight train left Minneapolis on avoided. The conductor of the gravel train althe morning of November 6, 1880, there was lowed it to be so overloaded that its engine was coming toward that City from Fort Snelling, by incapable of moving it at one portion of the road order of the Company, over the same road, a before reaching the cut; and when, in consegravel train, termed in the complaint a "wild quence, he was obliged to leave half of his cars [381]train," that is, a train not running on schedule on the track while he took the others to Minnetime any regular trips. The conductor, McClin-haha, he omitted to send forward information of tock, was informed by telegram from the train dispatcher of the coming of this gravel train, and ordered to hold the freight train at South Minneapolis until the gravel train arrived. South Minneapolis is between Minneapolis and the place where the collision occurred. The gravel train had been engaged for a week before in hauling, in the night, gravel to Minneapolis from a pit near Mendota, for the construction by the Company of a new and separate line of railroad between St. Paul and Minneapolis, and the freight train had, during this time, been stopped by the conductor, on orders of the train dispatcher, upon side tracks between Minneapolis and St. Paul Junction, for the passage of the gravel train. But on the night of November The general liability of a railroad company 6, 1880, he neglected to deliver to the plaintiff for injuries, caused by the negligence of its the order he had received, and after the train servants, to passengers and others not in its started he went into the caboose and there fell service is conceded. It covers all injuries to asleep. The freight train of course did not stop which they do not contribute. But where inat the station designated, but continuing at a juries befall a servant in its employ, a different speed of fifteen miles an hour, entered a deep and principle applies. Having been engaged for the narrow cut three hundred feet in length, through performance of specified services, he takes upon which the road passed at a considerable curve, himself the ordinary risks incident thereto. As and on a down grade, when the plaintiff saw on a consequence, if he suffers by exposure to the bank a reflection of the light from the en-them, he cannot recover compensation from his gine of the gravel train, which was approaching employer. The obvious reason for this exemp-[383] from the opposite direction at a speed of five or tion is, that he has or, in law, is supposed to six miles an hour, and was then within about have them in contemplation when he engages in one hundred feet. He at once whistled for the service, and that his compensation is arbrakes and reversed his engine, but a collision ranged accordingly. He cannot, in reason, comalmost immediately followed, destroying the plain if he suffers from a risk which he has volengines, damaging the cars of the two trains, untarily assumed, and for the assumption of causing the death of one person, and inflicting which he is paid. There is also another reason

The collision having been caused by the gross negligence of the conductors, the question arises whether the Company is responsible to the plaintiff for the injuries which that collision inflicted upon him.