majority">Ogden, P. J.

The appellant was tried and convicted on a criminal prosecution in the lower court, and has appealed the case to this court for the correction of certain alleged errors.

On the trial he moved a transfer of his case to the Federal court for certain specified reasons, among which are, that the defendant is an American citizen of African de*610scent, and that there exists in the county where he is indicted, and in the State, such a prejudice against his race, and especially and particularly against himself, for causes there stated, that he cannot have justice done him in the State courts, and claimed that for said causes he was entitled, under the act of Congress of April 9, 1866, commonly called the Civil Rights Bill, to be heard and have his case determined in that court. His motion for that purpose was by the District Court refused, and the action of the°court in that respect he complains of as a material error, seriously affecting his rights under the law.

The first question, therefore, for the decision of this court is, had the appellant the right, under the act of Congress, and upon the facts set out in his several motions, to remove his case for final trial to the Federal court? If so, then this court has no jurisdiction over the . other errors assigned, and has only to reverse the judgment of the District Court, and order a suspension of all further proceedings by that court until the action of the Federal court upon the case has been duly certified to it for observance. But if the appellant had no right to remove his case to the Federal court, and the District Court did not err in refusing the application, and rightly held jurisdiction of the case for final trial and determination, then it may become the province and duty of this court to pass upon the other assignments of error.

In deciding the motion to remove, the district judge delivered a lengthy written opinion, in which he strongly intimates that the act of Congress called the Civil Rights Bill is at least in one respect unconstitutional, and refers to several adjudicated cases in the State courts in support of that position. We have not been able to examine all the cases referred to, from the fact that they are at present inaccessible, but such as we have examined we consider either inapplicable to the case at bar, or from *611the peculiar language of the court making the decision not entitled to any weighty consideration. The constitutionality of the Civil Rights Bill has been repeatedly recognized by the Supreme Court of the United States, the ■only tribunal which has the ultimate and final determination of the constitutionality of all acts of Congress, and we think State courts should be exceedingly cautious in attempting to settle (questions of grave importance which belong peculiarly to a different and higher tribunal. This court has recognized the Civil Rights Bill as constitutional, and we feel bound to so regard it until higher authority and better reason than we have seen convince us to the contrary.

The Civil Rights Bill declares all persons, with certain exceptions, born in the United States to be citizens thereof, regardless of their previous condition, race or color, entitled to the same rights, and subject to like punishments, pains and penalties, and to none other. The 3d Section provides that “the District Courts of the United States within their respective districts shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also concurrently with the Circuit Courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State, or locality where they may be, any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any such person for any cause whatsoever, "x" such defendant shall have the right to remove such cause for trial to the proper District or Circuit Court, in the manner prescribed,” etc. It cannot be controverted that the object and purpose of this act was primarily to protect the recently emancipated slaves of *612the country against class and unfriendly legislation by the States and the prejudices which had grown up with the institution of slavery against the colored man enjoying any of the rights of a citizen.

It attempted to secure by this right of removal of all such causes to the courts of the nation, where the equal rights of all parties were supposed to be fully recognized, to the colored man those rights which might be denied him by class legislation, or where he could not enforce those rights under equal and impartial laws because of the prejudice existing among his former masters against the freedom of his race; and therefore the statute uses the very comprehensive language in applying the remedy to all persons who are denied or cannot enforce in the courts or judicial tribunals of the State any of the rights secured to them by this act. Any other construction would render the latter portion of the clause absolutely nugatory, and indeed would render the whole act almost entirely useless for any good purpose whatever. There is now perhaps not a State whose laws make any distinction between the rights of the colored and white citizen, while there may be many localities where the colored man cannot expect to receive his equal rights under the laws. In a well considered opinion of the Supreme Court of North Carolina (65 N. C. Rep., The State v. Dunlap), where this identical question was the only one presented, Chief Justice Pearson very truthfully and forcibly says : “Had the object been merely to prevent discrimination by laws of the State, very few words would have answered the purpose, and there would have been no occasion for an affidavit in regard to the matter which must appear on the face of the public law;- but the act under consideration goes, into detail, and, among other things, guarantees to every citizen of color as full and equal benefit of all laws and proceedings for the security of person and *613property as is enjoyed by white citizens.” The statute secures to the colored citizen the benefit of all laws and proceedings, thereby clearly indicating that it was possible that the colored man might, through prejudice, be deprived in the State courts of the execution of equal and impartial justice, and therefore the provision for the removal to the Federal courts. In the language of Justice Pearson in the case referred to, we consider, after mature reflection, that it is conclusive that the act of Congress was intended to reach and conclude every case “where, by reason of prejudice in a community or otherwise, a fair and impartial trial cannot be had in the State courts.” We must therefore decide that the District Court erred in refusing the removal of this case to the United States court, and for that reason the judgment must be reversed. Whether this construction will place in the colored citizen rights not enjoyed by white citizens, or whether the Federal courts can execute the laws of this or any other State, are questions we do not feel called upon now to consider. When the case goes before that court it will then be time enough for it to consider what to do—whether to try the case or remand it to the State court. In either and any ■event, if we follow the law the responsibility will rest upon the law-making power, and not upon those who administer it.

The requisite formalities for removing a case from a State to the Federal court are prescribed in the act of Congress ■of March 13,1863, and amendments thereto, and we think were sufficiently closely followed in this case to entitle the party to the benefits of the law, excepting his failure ■to tender in the State court “good and sufficient security for his filing in such (United States) court, on the first day •of its session, copies of such process and other proceedings against him, and also for his appearing in such court and entering special bail in the case.”

*614This would certainly have been the better practice, and under the act of March 12, 1863, was a prerequisite to the right of removal. But under the amendatory act of May 11, 1866, it is enacted: “Nor shall it be necessary, in the State court, to offer or give security for the filing of copies in the Circuit Court of the United States, but on filing the petition as provided for in said fifth section the further proceedings in the State court shall cease, and not be resumed until a certificate under the seal of said Circuit Court of the United States, stating that the petitioner has failed to file copies in said Circuit Court at the next term, is produced.” This last act refers as well to removals to the district as the circuit courts of the United States, and prescribes clearly the duties of the State courts.

The judgment of the District Court is reversed, and the cause remanded, to be proceeded with in accordance with this opinion.

Reversed and remanded.

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