negligence of the superintendent. (Supreme Court, 1893, City Council of Sheffield v. Harris, 14 Southern Reporter, 357.)

In an action against a municipal corporation for personal injuries to a laborer employed by it, a complaint which states that plaintiff worked under the immediate supervision of one H., employed by defendant for the purpose, and to whose orders plaintiff was bound to and did conform, and that, acting under the orders of H., plaintiff went into an excavation known to defendant and to H. to be unsafe, and that, by reason of defendant's failure to have the sides of the excavation properly braced, they caved in and injured plaintiff, states a good cause of action under the third subdivision of section 2590. (Supreme Court of Alabama, 1894, Lewis v. City Council of Montgomery, 16 Southern Reporter, 34.)

In a case arising under subdivision 5 of this section [2590], the employer is liable for an injury inflicted upon an employee by the negligence of a coemployee, when such negligence comes within the provisions of the employer's act [section 2590], and that without reference to the care and diligence used by the employer in the selection of his servants or employees. The employer's act [sections 2590 to 2592, inclusive] in no wise relieves the employer from the duty of selecting with reasonable care his servant. The act imposes a further liability, and makes him responsible for injuries sustained by an employee in consequence of any neglect by the employer or his servants specified in the act itself. (Supreme Court, 1895, Culver v. Alabama Midland Railway Company, 18 Southern Reporter, 827.)

ACTS OF 1886-87, ACT No. 47.—Color blindness of railroad employees. (a) This statute does not deprive a railroad company of its property without due process of law, and is therefore not in conflict with the fourteenth amendment to the Constitution of the United States, and, so far as it affects interstate commerce, is within the competency of the State to enact, until Congress shall legislate on the subject. Requiring railroad companies to pay the fees allowed for the examination of parties who are to serve on their railroads is one of the capacities mentioned in this statute, and does not deprive them of property without due process of law. It is merely imposing upon them the expenses necessary to ascertain whether their employees possess the physical qualifications required by law. (United States Supreme Court, 1888, Nashville, Chattanooga and St. Louis Railway . Alabama, 128 U. S., 96.)

ACTS OF 1886-87, Act No. 59.—Examination and licensing of locomotive engineers. (b)

Plaintiff in error was an engineer in the service of the Mobile and Ohio Railroad Company. His duty was to "drive, operate, and engineer" a locomotive engine drawing a passenger train on that road, regularly plying in one continuous trip between Mobile in Alabama and Corinth in Mississippi, and vice versa, 60 miles of which trip was in Alabama, and 265 in Mississippi. He never drove, operated,

66

or engineered" a locomotive hauling cars exclusively within the State of Alabama. After the statute of Alabama took effect, he continued to perform such regular duties without taking out the license required by that act. He was proceeded against for a violation of the statute, and was committed to jail to answer the charge. He petitioned a State court for a writ of habeas corpus upon the ground that he was employed in interstate commerce, and that the statute, so far as it applied to him, was a regulation of commerce among the States, and repugnant to the Constitution of the United States. The writ was refused, and the supreme court of the State of Alabama on appeal affirmed the judgment. On appeal to the Supreme Court of the United States it was held:

(1) That the statute of Alabama was not, in its nature, a regulation of commerce, even when applied to such a case as this;

(2) That it was an act of legislation within the scope of the powers reserved to the States, to regulate the relative rights and duties of persons within their respective territorial jurisdictions, being intended to operate so as to secure safety of persons and property for the public;

(3) That so far as it affected transactions of commerce among the States, it did so only indirectly, incidentally and remotely, and not so as to burden or impede them, and that, in the particulars in which it touched those transactions at all, it was not in conflict with any express enactment of Congress on the subject, nor contrary to any intention of Congress to be presumed from its silence;

a See Law, page 82.

b See Law, page 83.

(4) That so far as it was alleged to contravene the Constitution of the United States, the statute was a valid law. (Supreme Court, 1886, McDonald v. State, 81 Ala., 279; United States Supreme Court, 1887, Smith v. Alabama, 124 U.S., 465; followed by Nashville, Chattanooga and St. Louis Railway v. Alabama, 128 U.S., 96.)

Under sections 1 and 2 of this act, locomotive engineers are require to be licensed, only when they operate or drive an engine upon the main line or roadbed of any railroad in this State;" and when an action is brought to recover damages for personal injuries sustained through the alleged negligence of an engineer in charge of an engine employed only in the railroad yard, and while so employed, the fact that he had no license can not be looked to as tending to show negligence on the part of the railroad company. (Supreme Court, 1889, Memphis and Charleston Railroad Company v. Askew, 90 Ala., 5.)

ARKANSAS.

DIGEST OF 1894, CHAPTER 130, SECTIONS 6243 TO 6245.—Employees on railroads to be paid when discharged. (a)

This act [sections 6243 to 6245, inclusive] is, as to natural persons, an invasion of the right, secured by section 3 of article 2 of the constitution, “of acquiring, possessing and protecting property;" but as to corporations, the act is a valid exercise of the right, reserved by article 12, section 6, of the constitution of 1874, "to alter, revoke or annul any charter of incorporation."

The requirement that wages earned shall be paid "without abatement or discount" means without discount on account of the payment thereof before they were due under the contract, and does not prevent the employer from offsetting any damages sustained by the employee's failure to perform his contract.

The act, being general and uniform in its operation upon all persons coming within the class to which it applies, does not (if amendments to charters can) come within the inhibition of the constitution (article 5, section 25) against special legislation.

In providing that if the wages of a discharged servant or employee be not paid to him on the day of his discharge, "then, as a penalty for such nonpayment, the wages of such servant or employee shall continue at the same rate until paid." the act contemplates the payment of the additional sum as a compensation for the delay and as a punishment for the failure to pay, and in a proper case a justice of the peace has jurisdiction of a suit for recovery of the amount due under the statute. (Supreme Court, 1894, Leep v. Railway Company, 58 Ark., 407.)

CALIFORNIA.

CONSTITUTION, ARTICLE 19, SECTIONS 2 TO 4, AND DEERING'S CODES AND STATUTES, 1885, VOL. IV, PENAL CODE, SECTIONS 178 AND 179.-Employment, etc., of Chinese. (b)

Under section 10, Article I, of the Constitution of the United States, and section 2, Article II, the treaty-making power has been surrendered by the States to the National Government, and vested in the President and Senate of the United States. Under Article I the Constitution of the United States and laws made in pursuance thereof and treaties made under its authority are the supreme law of the land; and the judges in every State, both State and National, are bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. The provisions of articles 5 and 6 of the treaty with China of June 18, 1868, recognizing the right of the citizens of China to emigrate to the United States for purposes of curiosity, trade and permanent residence, and providing that Chinese subjects residing in the United States shall enjoy the same privileges, immunities, and exemptions in respect to travel and residence as may be enjoyed by the citizens or subjects of the most-favored nations are within the treaty-making power conferred by the Constitution upon the President and Senate, and are valid and constitute a part of the supreme law of the land. Any provision of the constitution or laws of California in conflict with the treaty with China is void. Section 2 of article 19 of the constitution of California is in conflict with articles 5 and 6 of said treaty with China, and is void. The act of February 13, 1880 (sections 178 and 179 of the Penal Code), to enforce said article of the constitution, violates the treaty with China and is void. The privileges and immunities which under the treaty the Chinese are entitled to enjoy to the same extent as enjoyed by the subjects of the most-favored nation are all those rights which are fundamental, and page 112.

a See Law,

b See Laws, pages 116 and 130.

of right belong to citizens of all free governments; and among them is the right to labor and pursue any lawful employment in a lawful manner. Property is everything which has an exchangeable value. Labor is property, and the right to make it available is next in importance to the right to life and liberty. The provisions of article 19 of the constitution of California and said act of the legis lature (sections 178 and 179 of the Penal Code) passed to enforce it, prohibiting the employment of Chinese, are also in conflict with the provisions of the fourteenth amendment to the Constitution of the United States, and are void on that ground. Said provisions are in conflict with that part of the said fourteenth amendment which provides that no State shall deprive any person of life, liberty, or property without due process of law. They are also in conflict with that portion of said amendment which provides that no State shall deprive any person within its jurisdiction of the equal protection of the laws. Chinese or Mongolians residing within the jurisdiction of California are "persons" within the meaning of the term as used in the said fourteenth amendment to the Constitution. Sections 1977 and 1978 of the Revised Statutes of the United States were passed in pursuance of said fourteenth amendment and to give it effect; and said constitutional and statutory provisions of the State of California are in conflict with said provisions of the Revised Statutes. Discriminating legislation by a State against any class of persons, or against persons of any particular race or nation, in whatever form it may be expressed, deprives such class of persons or persons of such particular race or nation of the equal protection of the laws, and is prohibited by the fourteenth amendment. This inhibition of the fourteenth amendment upon a State applies to all the instrumentalities and agencies employed in the administration of its government, to its executive, legislative and judicial departments, and to the subordinate legislative bodies of counties and cities. Where the State legislation, under its reserve power to alter and repeal charters of corporations, comes in conflict with valid treaty stipulations and with the Constitution of the United States it is void. Where the policy of State legislation under its reserve power to alter or repeal charters of corporations does not have in view the relations of the corporations to the State as the object to be affected, but seeks to reach the Chinese and exclude them from a large field of labor, the ultimate object being to drive them from the State, in violation of their rights under the Constitution and treaty stipulations-the discriminating legislation being only the means by which the end is to be obtained-the end sought is a violation of the Constitution and treaty, and the legislation as such is void. Where the object sought is unlawful it is unlawful to use any means to accomplish the object. That which can not be constitutionally done directly can not be done indirectly. Section 31, article 4 of the constitution of California, which provides that all general laws passed for the formation of private corporations may be altered from time to time or repealed, does not authorize the legislature to forbid the employment by corporations of persons of a particular class or nationality. (United States Circuit Court, District of California, 1880, In re Tiburcio Parrott, 1 Federal Reporter, 481.)

DEERING'S CODES AND STATUTES, 1885, VOL. I, POLITICAL CODE, SECTIONS 3244 TO 3250.-Hours of labor. (a)

The provision made in section 3245 that "a stipulation to that effect shall be made a part of all contracts," etc., means that "eight hours' labor shall constitute a legal day's work" under the contract to which the stipulation is made applicable. By this section it was the intention of the legislature absolutely to prohibit the officers of the State and subordinate local governments from requiring anyone doing public work to work more than eight hours in doing a legal day's work, but it was not the intention to require them to prohibit the laborer from doing extra work for extra pay. (Supreme Court, 1869, Drew v. Smith, 38 Cal., 325.)

A contract for the erection of county buildings is not void because it does not contain the stipulation that eight hours shall be a day's work under it, as directed by section 3245. (Supreme Court, 1874, Babcock v. Goodrich, 47 Cal., 488.)

DEERING'S CODES AND STATUTES, 1885, VOL. II, CIVIL CODE, SECTIONS 1969 TO 1971.-Obligations of employer. (b)

The law of this State respecting the negligence of a fellow-servant, where there is no want of ordinary care upon the part of the employer, as set forth in this section [1970], recognizes no distinction growing out of the grades of employment of

a See Law, page 117.

b See Law, page 119.

the respective employees nor does it give effect to the circumstance that the fellowservant through whose negligence the injury was received was the superior of the plaintiff in the general service in which they both were employed. (Supreme Court, 1876, McLean v. Blue Point Gravel Mining Company, 51 Cal., 255; 1893, Daves v. Southern Pacific Company, 98 Cal., 19.)

Under section 1970 the common employer is not liable for injuries to a servant caused by the negligence of a fellow-servant, in the absence of evidence that the employer had neglected to use ordinary care in the selection of the fellow-servant. (Supreme Court, 1878, McDonald v. Hazletine, 53 Cal., 35.)

In an action by a wife for damages for the death of her husband, occurring in the employment of the defendant, it appeared that the death was caused by a fire originating from a defective pipe, put up under the supervision of the defendant's superintendent; and it did not appear that the deceased knew or had reason to know of the defect. Held, that the superintendent was not a fellow-employee of the deceased in the sense intended by section 1970; and that the work of putting up the pipe, being done under his supervision, was the same as though done by him in person; that the deceased had a right to rely upon the implied engagement of the defendant that the pipe was properly placed and constructed, and that the defendant was therefore liable. (Supreme Court, 1880, Beeson v. Green Mountain Gold Mining Company, 57 Cal., 20.)

A train dispatcher and material-man on a railroad, having authority to employ or discharge men and direct the movements of trains, is not a fellow-employee with an ordinary track laborer within the meaning of section 1970. (Supreme Court, 1885, McKune v. California Southern Railroad Company, 66 Cal., 302.)

Under section 1971 a railroad company is liable for the death of an employee caused by the falling of a bridge negligently constructed and maintained by the company as a part of its road.

If the falling of the bridge resulted from an act of God the company is not iable, unless its negligence was a contributing cause of the accident, and in order to charge the company in such a case it must be guilty of negligence amounting to a want of ordinary care. (Supreme Court, 1885, Rodgers v. Central Pacific Railroad Company, 67 Cal., 607.)

In an action brought to recover damages for personal injuries the plaintiff was an employee in a mine owned by the defendants. The shaft of the mine was divided by a framework of posts into two compartments, one of which was provided with a ladder way for the use of the employees. The plaintiff while ascending the ladder was injured by a timber which had been negligently thrown by a fellow-employee into the shaft. Held, under section 1970, that the defendants were not liable, although the partition between the compartments may have been defectively constructed or insufficient in other particulars, the immediate and proximate cause of the injury having been the gross negligence of the coemployee. (Supreme Court, 1886, Kevern v. Gold and Silver Mining Company, 70 Cal., 392.)

The foreman of a mine and a miner employed to work under his directions are fellow-servants; and the owner of the mine is not liable for injuries caused to the latter through the negligence of the foreman under section 1970, unless he failed to use ordinary care in the selection of the foreman. (Supreme Court, 1887, Stephens v. Doe, 73 Cal., 26.)

A laborer employed by a railroad company to remove snow and other obstructions from its track is a fellow-servant and employed in the same general business with a track walker and train conductor, and the company is not liable under section 1970 for personal injuries to him caused by the combined negligence of the latter two unless the record shows that the defendant neglected to use ordinary care in the selection of the conductor and track walker. (Supreme Court, 1889, Fagundes v. Central Pacific Railroad Company, 79 Cal., 97.)

Under this section [1970] a railroad company is not liable for the death of a brakeman in a collision caused by the negligence of the conductor on the same train in running his train ahead of schedule time, unless the company was negligent in selecting an incompetent conductor. (Supreme Court, 1891, Congrave v. Southern Pacific Railway Company, 88 Cal., 360.)

A fireman and oiler and an engineer of a ferryboat are fellow-servants employed "in the same general business" within the meaning of this section [1970], and the fact that the engineer employs and discharges the firemen and oilers who work

under him does not alter their relations as fellow-servants. (Supreme Court, 1893, Stevens v. San Francisco and North Pacific Railway Company, 100 Cal., 554.)

An employee of a street railroad company who was crushed between cars passing on the switch and main tracks while standing there to change the switch is not guilty of contributory negligence where it appears that this position is the one usually taken and not in itself a place of peril. Under Civil Code, section 1970, providing that an employer shall not be liable for injuries to an employee through the negligence of a coemployee unless he has neglected to use ordinary care in the selection of such coemployee, and section 1971, providing that an employer must in all cases indemnify his employee for loss caused by the former's want of ordinary care, in an action by an employee for injuries resulting from the negligence of plaintiff's coemployee, where it was shown that defendant used due care in selecting the coemployee, plaintiff can not recover without showing that such coemployee was in fact incompetent, and that defendant had knowledge thereof, or that his reputation was such that defendant should be presumed to have had knowledge of his incompetency. In an action against an employer for injury resulting from the incompetency of a fellow-servant, where it is shown that defendant exercised ordinary care in the selection of such servant, plaintiff can not recover merely on proof of his reputation for recklessness and carelessness without also proving that he was in fact reckless and careless. (Supreme Court, 1895, Gier v. Los Angeles Consolidated Electric Railway Company, 41 Pacific Reporter, 22.)

DEERING'S CODES AND STATUTES, 1885, VOL. II, CIVIL CODE, SECTIONS 1996 TO 2003.-Termination of employment. (a)

In order to bring a case within section 1998, providing for the continuance of the employment for a reasonable time in certain cases, the complaint must state facts and not mere conclusions. It is not sufficient to allege in terms that the continuance of the employment was necessary and that the time was reasonable. (Supreme Court, 1888, Weithoff v. Murray, 76 Cal., 508.)

ACTS OF 1891, CHAPTER 140.-Exclusion of Chinese, etc. (b)

This act is in excess of the power of the State, and in conflict with the Constitution of the United States, which gives exclusive power to the General Government to regulate commerce with foreign nations; and Congress, in the exercise of its constitutional power, having prescribed the terms upon which the Chinese now here shall be permitted to remain within the United States, it is beyond the power of the State to impose any further conditions. (Supreme Court, 1894, Ex parte Ah Cue, 101 Cal., 197.)

COLORADO.

MILLS' ANNOTATED STATUTES OF 1891, CHAPTER 85, SECTIONS 3181 TO 3200.— Coal mine regulations and inspection. (c)

The primary object of these sections was to secure the health and personal safety of all persons engaged in under ground coal mining. While it is the duty of the "mining boss" to see that sufficient timber of suitable lengths and sizes is placed in the working places of the mine, the duty of securely propping the roof of the mine, by actually setting such timbers thereunder, is devolved upon any miner, workman, or other person having the control of any working place in the mine, and the willful neglect of such duty is a misdemeanor under these sections. (Supreme Court, 1894, Victor Coal Company v. Muir, 38 Pacific Reporter, 378.)

A mine boss appointed under the coal-mining act of 1885 [section 3184], which compels his appointment, makes it his duty to attend to the mine and make it safe to work in, and subjects him to punishment in case of failure, and who had no authority over the workmen in the coal mine other than that prescribed by the statute, is a fellow-servant with a driver employed in such mine, and the mining company is not responsible for his negligence resulting in the death of such driver. (Court of Appeals, 1895, Colorado Coal and Iron Company v. Lamb, 40 Pacific Reporter, 251.)

a See Law, page 120. b See Law, page 138.

c See Law, page 154.