DANZIG 11. GUMERSELL.
and others v.
(Oircuit Oourt, E. D. Mi88ouri.
Where, by the terms of a composition agreement, the creditors agree t08Ccept notes indorsed by a particular person, and that person dies, they arenot -bound to accept any other indorser. Where, in such a case, the debtor wrote to his creditors them of the death of the proposed indorser, and suggesting B. as a substitute, and closed his letter as follows: "Should you deem his indorsement sufficiflnt, please advise me promptly:" held, that a creditor who did not signify his intention until notes indorsed by B. had been accepted by the other creditors, was not bound to accept such notes, and, having refused to do so, is at liberty to sue on his oriAtinal cause of action..
At Law. E. Cunningham, Jr., for plaintiffs. George M. Stewart, for defendants.
BREWER, J., (orally.) In the case of Danzig and other8 against Gumersell and others, an action on three notes, the defense is a composition agreement, signed by the creditors of Gumersell. The facts are these: The defendants, merchants in this city, becoming embarrassed, arrangements were entered into for a composition and a discharge upon giving notes to the amount of 50 per cent.; and an agreement was prepared and signed by substantially all, if not all, the creditors, which agreement was that the creditors would take five notes, amounting to 50 per cent. of their debts, payable in 3, 6, 9, 12, and 15 months, indorfled by Turnbull & Gumersell, of Newark, New Jersey. Plaintiffs signed that composition agreement. After it was signed, Gumersell, of the firm of Turnbull & Gumersell, died. That was on the ninth of March. On the same day a circular letter was sent to all of the creditors, announcing the fact of the death, and proposing that Alexander Turnbull, who belonged to the firm of Turnbull & Gumersell, should indorse in place of Turnbull.& Gumersell. After referring to some parties from whom information could be obtained as to the financial responsibility of Mr. Turnbull, the letter closed wi th these words: "Should ,You deem his indorsement sufficient, please advise me promptly." That letter was mailed to all the creditors on the ninth of March. The plaintiffs made no reply. On the nineteenth or twentieth of March, notes were prepared and indorsed by Alexander Turnbull for all of the debts. They were presented to one and another of the creditors, and by them accepted. They were presented to the plaintiffs, and by them declined, and thereafter this action was brought on the original notes of Gumersell & Bro.
Benj. F. Rex, Esq., of the St. Louis bar.
It is claimed that there was a composition agreement which, of course, would bar an action on these notes. If not executed, the conduct of the plaintiffs, it is claimed, was such as to estop them denying the composition agreement; and, if trne, that would be a bar; for it is well settled that a creditor, although not formally putting his name to a composition agreement, may sometimes, by his conduct inducing other creditors to enter into the composition, be estopped from denying that he himself is a party to' it. Was there a composition agreement executed? The agreement was signed was to accept the notes of the defendant indorsed by Turnbull & Gumersell. No such notes were ever prepared or presented, and, indeed, could not be, Mr. Gumersell having died. The written agreement was therefore never carried into effect. Plaintiffs, when the notes indorsed by' Alexander Turnbull were presented, declined to accept. They thereafter, neither by the written agreement nor by any parol acceptance, executed any composition agreement. Was their conduct such as to estop them? Of course, as I said, if a creditor induces other creditors to sign a composition agreement upon the faith that he is a party to it, or that he will become a party to it, he may be estopped thereafter to deny that he is a party to it, for it would be a fraud upon the other creditors, who have relied upon his actions. But is there any conduct on the part of the plaintiffs to estop them? They signed the agreement that failed. It was no fault of theirs. They never, by word or act, indicated to any party, creditor or debtor, that they would take notes indorsed by Alexander Turnbull alone. The letter which was sent to them closes as I said, -"Should you deem his indorsement sufficient, please advise me promptly." No answer was returned to this. Silence implied a denial, for if they deemed his indorsement sufficient they were to answer, and not answering implied it was not sufficient. The case might be different if the tenor of the letter had been different. If the inquiry had been, "If you deem this insufficient, please advise promptly," and they had not answered, there might then be a hasis for saying that the parties were misled, relying on the silence as an assent to the sufficiency of the proposed new indorsement. It seems to me, therefore, it cannot be held that there was ever a composition agreement in fact, or that plaintiffs in any way conducted themeelves 80 as to estop them from denying any agreement, or from a recovery upon the original notes, and judgment will be so ordered.
IN RE BALDWIN.
In re BALDWIN.
((Jircuit (Jourt, D. Oalifornia. March 81, 1888.)
CoNSTITUTIONAL LAw - PRIVILEGES AND IMMUNITIES 01' CITIZENB 011' CONSPIItACY TO DRIVE OUT CHINESE.
Rev. St. § 5519. so far as it embraces a conspiracy to deprive Chinese residents of a state of the privileges and immunities secured to them by existing treaties, is constitutional. Per SAWYER, C. J., SABIN, D. J., dissenting.
On Habeas Corpus. A. L. Hart, for petitioner. Hall ]fcAllister and J. W. Armstrong, for respondent. Before SAWYER and SABIN, JJ.
SAWYER, C. J. The petitioner is in the custody of the marshal of this district, under a warrant issued by a United States commissioner, upon a charge of conspiracy with a number of other persons named, to deprive certain Chinese residents of the town of Nicolaus, but not citizens of the United States, of their right to reside, and pursue their town, and of actually depriving them of such lawful vocations, in right by forcibly expelling them from their homes, and from the town, in pursuance of said conspiracy; thereby depriving thenl of their rights and privileges under the laws, and of the equal protection of the laws, guarantied to them under our treaty with China. The charge is apparently founded upon section 5519 of the Revised Stat· utes of the United States, which. so far as applicable to this case, provides that '"if two or more persons in any state or territory can· spire · · - for the purpose of depriving, directly or indirectly, any person or class of person's of the equal protection of the laws, ()7' 0/ equal privileges or immunities under ,the laws, - - · each of such persons shall be punished by a fine of not less than five hundred dol· lars, or more than five thousand dollars, or by imprisonment. with or without hard labor, not less than six months, nor more than six yea.rs, or by both such fine and imprisonment." It seems to me that there can be no doubt that the acts charged are within the provisions of this section, and if the provisions. so far as they embrace Chinese aliens.-subjects of the emperor of China, -are constitutional and valid, that they constitute It very grave ofr fense against the United States. So far as the provisions relate to the territories over which the United States have exclusive legisla. tive power, there can be little doubt that the act is valid. National Bank v. Yankton, 101 U. S. 129, 133. If invalid so far as the state is concerned, the provision as to the territories is easily severable, and it will be upheld so far to be valid. Packet Co. v. Keokuk, 95 U. S. 80, 89; Presser v. Illinois, 6 Sup. Ct. Rep. 583. But in U. S. v. Harris, 106 U. S. 629, S. C. 1 Sup. Ct. Rep. 601, this provision was held to be unconstitutional and void, BO far as it applies to citizens
;0 the facts of this case, of course it is controlling, and the petitioner
is unlawfully held, and must be discharged. But the Case of Harris depended solely upon the fourteenth amendment, which was held to be aimed only at state action, and did not apply to unlawful combinations of individual citizens against other citizens, acting wholly without color of law or authority of the state. On that ground alone it was held to be unconstitutional; the provisions authorizing appropriate legislation to enforce the amendment extending no further than to protect the rights expressly provided for in the amendment. In this case, however, the Chinese aliens against whom the conspiracy is aimed do not rely upon the fourteenth amendment alone, or at all, except so far as the right to enjoy all the privileges and immunities of citizens, and the equal protecition of the laws, is implied from its provisions recognizing the rights by protecting them from hostile state legislation, upon the principles adopted in Ex parte Yarbrough, 110 U. S. 652, 664, 665, S. C. 4 Sup. Ct. Rep. 152, and U. S. v. Waddell, 112 U. S. 76, 80, S. C. 5 Sup. Ct. Rep. 35. They rely mainly upon other express provisions of the constitution. Article 6 of the national constitution provides that "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution, or laws of any state, to the notwithstanding;" article 1, § 10, "that no state shall enter into any treaty, alliance, or confederation;" article 2, § 2, that the president "shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur;" and the last clause of section 8, art. 1, that congress "shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United or in any department or officer thereof." Thus, the states have surrendered the treaty-making power to the general government, and vested it exclusively in the president and senate; and when duly exercised by the president and senate the treaty resulting becomes the supreme law of the land, to which not only state laws, but state constitutions, are in express terms subordinated. As to what subjects are within the treaty.making power, see Parrott's Case, 6 Sawy. 368, 369, S. C. 1 Fed. Rep. 481, and the numerous cases there cited. It certainly, under the authorities there cited, embraces the entire subject-matter of our treaties with China. The rights, privileges, and immunities guarantied are within the treaty-making power to grant. They are created under, and are dependent upon, the constitution of the United States. And in U. S. v. Reese the supreme court holds that "rights and immunities created
of the United States within a state.
If that decision is applicable
IN BE BA.LDWIN.
by, or dependent upon, the constitution of the United States can be protected by congress. The form and manner of protection may be
such as congress, in the legitimate exercise of legislative power, shall provide. This may be varied to meet the necessity of the partioular right to be protected." 92 U. S. 217. And in Yarbrough's Case the supreme court says: "The power arises out of the circumstance that tlie function in which the party is engaged, or the right which he is about to e:rercise, is dependent on the laws of the United States. In both of these cases it is the duty of the government to see that he may exercise this right freely, and to protect him from violence while so doing, or on accou'J',t of so doing." 110 U. S. 658, and 112 U. S. 80 j 4 Sup. Ct. Rep. 152, and 5 Sup. Ct. Rep. 35. There is nothing in the suggestion of counsel that the Chinese, on this principle, are better off than citizeI':;. It is presumed that the state will protect its own citizens, while long experience shows that it will not always protect foreigners against the prejudices and hatred of citizens. But whether the suggestion be true or not cannot affect the question; for the state has not, in this particular, surrendered the power of protecting its own citizens among themselves to the United States. It has, however, surrendered its power over the intercourse of its citizens with foreign nations to the national government. The relations between the United States and foreign governments are matters of international and not mere state concern. 'l'he power to make treaties, and to grant rights within the state to aliens under treaties, necessarily involves the power to protect those rights when granted, either against the acts of the states or the citizens of the several states. Without this power of protecting the rights granted to aliens by treaty against hostile local prejudices, the power to grant Imch rights would be utterly futile and nugatory. Every right must have its remedy, or it is practically no right. The power to grant, without the power to protect, would be but in name without the substance. It is necessary for the national government to be empowered to execute its own laws, and especially its treaty stipulations with other nations. Without this power it would be impossible to avoid giving good cause for wars. Hence the power to protect the l'ights granted under treaties, as correlative to the power to grant, was fully vested in congress by the constitution. If this puts the Chinaman, as is said, in a better position than the citizen, so be it. But the state has surrendered that power to the general government in the one case, while it has not done so in the other. It might as well be said that the alien Chinese, or other nationality, is better off than the citizen because the former can always sue a citizen in the national courts while the latter cannot. There can be no doubt that making the violation of any rights so secured by the constitution and treaties "made under the authority of the United States" by a combination of individuals a criminal offense against the nation, and punishable as Buch, as is provided by section 5519, is a proper mode of protection.
Such combinations to violate treaty rights are matters, not merely of state, but international, concern, and may well involve questions of 'peace and war. By article 5 of the treaty called the "Burlingame Treaty," "the United States and the emperor cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and 1H1bjects, respectively, from the one country to the other, for the purposes of curiosity, of trade or as permanent residents." And article 6 further secures to Chinese residents "all privileges, immunities, and exemptions enjoyed by the citizens and subjects of the most favored nation." 16 St. 740. 'l'he amended treaty of 1880 adds the still more comprehensive word "rights" to the words "privileges, immunities, and exemptions," and expressly provides that ., Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord. " And article 3 of the latter is as follows: "If Chinese laborers, or Chinese of any other class. now either permanently or temporarily residing in the territory of the united States, meet with ill treatment at the hands of any othM" persons, the government of the United States will exert all its power to devise measures for their protection, and to secure to them the same 1'ights, privileges, immunities, and exemptions as may h'il enjoyed by the citizens or subjects of the most favured nation, and to which they are entitIed by treaty." 22 St. 827. Our treaty with Great Britain, still in force, will disclose what some of the rights so secured to the Chinese by these treaties are. It provides that "the inhabitants of the two countries, respectively, shall have liberty freely and securely come with their ships and cargoes to all such places, ports, and rivers in the territories aforesaid [of the United States and Great Britain, in Europe] to which other foreigners are permitted to come, to enter into the same, and to remain arid reside in any parts of the said territm'ies, respectively." Pub. Treaties, 293, 299, 312. Thus, the United States government has, by these treaties, made in pursuance of the constitution and under the authority of the United States, imposed upon itself the express obligation "to exert all its power to devise means for their [Chinese residents] protection," and to secure them the "rights, privileges, immunities, and exemptions," to which they are entitled where such Chinese residents meet with ill treatment at the hands of any other persons," as well as in consequence of unfriendly legislation by the states. This right is not limited to state action, as the fourteenth amendment was held to be limited; but it is expressly extended to individual acts. Among those rights is the right to select a place for temporary or permanent residence, and to reside and pursue their lawful vocations at the places so selected. As to what the privileges and immunities secured are, see Parrott's Case, 6 Sawy. 373, S. C. 1 Fed. Rep. 481, and cases cited, and People v. Marx, 99 N. Y. 386, S. C. 2 N. E. Rep. 29.
IN BE RALDWIN.
Proper means for protecting these rights certainly include the enacting of criminal laws for enforcing, protecting, and securing the rights guarantied by the treaties made in pursuance of the provisions of the constitution cited. These Chinese residents of Nicolaus, therefore, had rights arising under, and dependent upon, the constitution of the United States, and the treaties made in pursuance thereof between the United States and the emperor of China, which were violated by the acts charged upon 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 d0partment 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 U. S. 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," guarantied to them by the treaties, a doubt, I think, of its constitutionality there could scarcely 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, 95 U. S. 80, affirmed in Presser v. Illinois, 6 Sup. Ct. Rep. 580, at the present term of the supreme court, apply? The Chinese res· idents, under the treaty, may be regarded as a. subject-matter entirely distinct from citizens of the United States. The provisions vf the section as to the states, and as to the territories, operate, eel'-
tainly, 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 U. S. v. Hnrris 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 <lase 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 discrimmation 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, afterwards repeated in U. 8. 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 p::>wers conferred by the more general and comprehensive clauses cited iu 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 U. S. v. Harris or that in Packet Co. v. Keokuk, relating to the segregation of the constitutional from the unconstitutional parts of the section, should be applied to the facts dis·dosed 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