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99.

garding the re-entry into the United States of Chinese persons after a visit to China, one of which is as follows:

"Chinamen who are not laborers, and who may have heretofore resided in the United States, are not prevented by existing law or treaty from returning to the United States after visiting China or elsewhere. No certificates or other papers, however, are issued by the department, or by any of its subordinate officers, to show that they are entitled to land in the United States; but it is suggested that such persons should, before leaving the United States, provide themselves with such proofs of identity as may be deemed proper, showing that they have been residents of the United States, and that they are not laborers, so that they can present the same to and be identified by, the collector of customs at the port where they may return." Syn. Treas. Dec. 1890, pp. 253, 254.

J. Hubley Ashton and T. D. Riordan, for appellant. Asst. Atty. Gen. Parker. for the United States.

*Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Before proceeding to dispose of this case upon the merits, the question of jurisdiction, although not argued by counsel, must receive attention.

The act of congress of March 3, 1891, establishing circuit courts of appeals, and defining and regulating the jurisdiction of the courts of the United States, (26 St. p. 826,) was passed to facilitate the prompt disposition of cases in this court, and to relieve it from the oppressive burden of general litigation, which impeded the examination of cases of public concern, and operated to the delay of suitors. In re Woods, 12 Sup. Ct. Rep. 417.

By section 4"the review by appeal, by writ of error, or otherwise, from the existIng circuit courts, shall be had only in the supreme court of the United States, or in the circuit courts of appeals hereby established, according to the provisions of this act regulating the same.

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By section 14, § 691, of the Revised Statutes, and section 3 of the act of February 16, 1875, c. 77, (18 St. p. 316,) and “all acts and parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act," were repealed.

Under section 5, appeals or writs of error may be taken from the circuit courts directly to this court in six specified classes of cases, namely:

"(1) In any case in which the jurisdiction of the court is in issue. In such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision. (2) From the final sentences and decrees in prize causes. (3) In cases of conviction of a capital or otherwise infamous crime. (4) In any case that involves the construction or application of the constitution of the United States. (5) In any case in which the constitutionality of any law of the United States, or the validity or construction of

any treaty made under its authority, jo drawn in question. (6) In any case in which the constitution or law of a state is claimed to be in contravention of the constitution of the United States."

By section 6 the circuit courts of appeals "shall exercise appellate jurisdiction to review, by appeal or by writ of error, final decisions of the circuit courts, "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law." The appellate jurisdiction not vested in this court was thus vested in the court created by the act, and the entire jurisdiction distributed. McLish v. Roff, 141 U. S. 661, 666, 12 Sup. Ct. Rep. 118.

The words "unless otherwise provided by law" were manifestly inserted out of abundant caution, in order that any, qualification of the jurisdiction by contemporaneous or subsequent acts should* not be construed as taking it away except when expressly so provided. Implied repeals were intended to be thereby guard. ed against. To hold that the words referred to prior laws would defeat the purpose of the act, and be inconsistent with its context and its repealing clause.

And

The section then provides that "the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases, excepting that in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the supreme court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision. thereupon the supreme court may either give its instructions on the questions and propositions certified to it, which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. And excepting also that, in any such case as is herein before made final in the circuit court of appeals, it shall be competent for the supreme court to require, by certiorari or otherwise, any such case to be certified" for its deterinination as if brought up by appeal or writ of error. "In all cases not herein before, in this section, made final, there shall be of right an appeal or writ of error or review of the case by the supreme court of the United States where the matter in controversy shall exceed one thousand dollars besides costs."

By this section, judgments or decrees in the enumerated classes of cases are made final in terms by way of the exclusion of any review by writ of error or appeal, while, as to cases not expressly made final by the section, appeal or writ of error may be had, of right, where the

*The case before us is one of habeas corpus. The jurisdiction of the circuit court was not in issue, nor was the construction or application of the constitution of the United States involved, nor the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, drawn in question. It did not fall within either of the classes of cases which may be brought directly to this court under the act, and was therefore properly carried to the circuit court of appeals; and, as a case of habeas corpus is not one in which the matter in controversy involves a money value, no appeal lies from that court under section 6. Kurtz v. Moffitt, 115 U. S. 487, 6 Sup. Ct. Rep. 148. But as the decree is "made final" by the effect of the section in giving the circuit courts of appeals jurisdiction over that class of cases, we are of opinion that it is reviewable upon certiorari, and that this writ was providently issued.

In every case within its appellate jurisdiction the circuit court of appeals may certify to this court any questions or propositions of law in respect of which it desires instruction, and this court may then require the whole record and cause to be sent up; and so it is competent for this court by certiorari to direct any case to be certified, whether its advice is requested or not, except those which may be brought here by appeal or writ of error, and the latter are specified as those where the money value exceeds a certain amount, and which have not been made final "in this section:" that is, made final in terms. And as certiorari will only be issued where questions of gravity and importance are involved, or in the interest of uniformity of decision, the object of the act is thereby attained.

temporary purposes, animo revertendi, seek to re-enter it on their return to their business and their homes?

Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion. Rector v. U. S., 12 Sup. Ct. Rep. 511; Henderson v. Mayor, 92 U. S. 259; U. S. v. Kirby, 7 Wall. 482; Oates v. National Bank, 100 U. S. 239.

In the case of Low Yam Chow, 13 Fed. Rep. 605, it was held by the circuit court for the district of California (September 5, 1882) that Chinese merchants who resided, at the time of the passage of the act of congress of May 6, 1882, in other countries than China, on arriving in a port of the United States, were not required by that act to produce certificates of the Chinese government establishing their character as merchants, as a condition of their being allowed to land, but that their character as such merchants could be established by parol evidence. And Mr. Justice FIELD, delivering the opinion of the court, referring to the sixth section of the act, said: "The certificate mentioned in this section is evidently designed to facilitate proof by Chinese, other than laborers, coming from China and desiring to enter the United States, that they are, not within the prohibited class. It is not required as a means of restricting their* coming. To hold that such was its object would be to impute to congress a purpose to disregard the stipulation of the second article of the new treaty, that they should be allowed to go and come of their own free will and accord.'"

And Judge DEADY, in the district court for the district of Oregon, held, January 15, 1883, that the certificate provided for in section 6 was not the only competent evidence that a Chinese person is not a laborer, and therefore entitled to come to and reside within the United States, but that the fact might be shown by any other pertinent and convincing testimony. In re Ho King, 14 Fed. Rep. 724.

cured the proper evidence of his status in this country as a merchant, in accordance with the regulations of the treasury department of July 3, 1890. He took passage for home at Hong Kong on the Oceanic, which reached San Francisco on August 11, 1891. Although it was admitted by the collector that appellant was a merchant domiciled in the United States, and the sufficiency of his proofs of identity was acknowledged, yet the collector refused to permit him to land, on the sole ground that he failed and neglected to produce the certificate of the Chinese government mentioned in section 6 of the Chinese restriction act of May 6, 1882, as amended by the act of July 5, 1884.

Does the section apply to Chinese merchants, already domiciled in the United

The amendatory act of July 5, 1884, enlarged the terms of the certificate, and provided that it should be the sole evidence permissible on the part of the person producing the same to establish a right of

evidence was evidently prescribed by the amendment as a means of effectually preventing the violation or evasion of the prohibition against the coming of Chinese laborers. It was designed as a safeguard to prevent the unlawful entry of such laborers under the pretense that they belonged to the merchant class or to some other of the admitted classes. But the phraseology of the section, in requiring that the certificate of identification should state, not only the holder's family and tribal name in full, his title or official rank, if any, his age, height, and all physical peculiarities, but also his former and present occupation or profession, when and where and how long pursued, and his place of residence, and, if a merchant, the nature, character, and estimated value of

the business carried on by him prior to and at the time of his application for such certificate, involves the exaction of the unreasonable and absurd condition of a for. eign government certifying to the United States facts in regard to the place of abode and the business of persons residing in this country, which the foreign governnient cannot be assumed to know, and the means of information in regard to which exist here, unless it be construed to mean that congress intended that the certificate should be procured only by Chinese residing in China or some other foreign country, and about to come for the first time into the United States for travel or business or to take up their residence.

Mr. Justice FIELD, in the case already cited, referring to the Chinese government, said: "That government could not be expected to give, in its certificate, the particulars mentioned of persons residentsome, perhaps, for many years-out of its jurisdiction. Neither the letter nor the spirit of the act calls for a construction imputing to congress the exaction of a condition so unreasonable. We

repeat what we said in the case of Ah Tie and other Chinese laborers,-that all laws are to be so construed as to avoid an unjust or an absurd conclusion, and general terms are to be so limited in their application as not to lead to injustice, oppression, or an absurd consequence.

The section, by its terms, declares that "every Chinese person, other than a laborer, who may be entitled by said treaty or this act to come within the United States, and who shall be about to come to the United States, shall obtain the permission of, and be identified as so entitled by, the Chinese government, or of such other foreign government of which at the time such Chinese person shall be a subject," the permission and identification in each case to be evidenced by the certificate described.

in the United States have, and are entitled to exercise, the right of free egress and ingress, and all other rights, privileges, and immunities enjoyed in this country by the citizens or subjects of the 'most favored nation.'

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There can be no doubt, as was said by Mr. Justice HARLAN, speaking for the court, in Chew Heong v. U. S., 112 U. S. 536, 549, 5 Sup. Ct. Rep. 255, that, "since the purpose avowed in the act was to faithfully execute the treaty, any interpre tation of its provisions would be rejected which imputed to congress an intention to disregard the plighted faith of the gov ernment; and, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty.

Tested by this rule, it is impossible to hold that this section was intended to prohibit or prevent Chinese merchants, having a commercial domicile here, from leaving the country for temporary pur poses, and then returning to and re-entering it; and yet such would be its effect, if construed as contended for on behalf of appellee.

In the Case of Ah Ping, 23 Fed. Rep. 329, it was held that the section did not apply to Chinese subjects, residents of the United States, departing for temporary purposes of business or pleasure; and the late Judge SAWYER, delivering the opinion of the court, said: "As to those domiciled in foreign countries, there is no ready means in this country for their identification. In the countries whence they propose to come, the means of ascertaining the facts are at hand; hence the provision. As to those resident or domiciled in this country, we have ourselves the best means of identification, while as to many of them, even in their native country, and much less when they are temporarily in other foreign countries, there is no practicable, means of either identification, or for procuring the certificate prescribed. The United States statutes do not now nor have they ever required or provided for the issue of any certificate in this country to resident Chinese, other than laborers, who are about to depart temporarily, for business or pleasure, either to China or other foreign countries. There are many Chinese merchants in California who have been domiciled in the state from twenty to thirty-five years. Our own means of identification of such persons are greatly superior to those of any other country,-even that of their nativity. To require such parties, every time they go to another country, to perform the required acts abroad, would be utterly impractica

By general international law, foreigners who have become domiciled in a country other than their own acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country; and no restriction on the footing upon which such persons stand by reason of their domicile of choice, or commercial domicile, is to be presumed, while, by our treaty with China, Chinese merchants domiciled

solute refusal to permit their return."

The question has been ruled in the same way by the treasury department on many occasions; by Secretary Folger, March 14, 1884, (Syn. Treas. Dec. 1884, 128;) by Secre tary Gresham, September 25, 1884, (Id. 400;) by Secretary McCulloch, January 14, 1885, (Id. 1885, 26;) by Assistant Secretary French, December 2, 1884; by Assistant Secretary Maynard, November 7, 1888; and by Acting Secretary Batcheller in the instructions of July 3, 1890, already given.

plaintiff's theory that the exception applies only to the shop buildings is untenable.

With regard to the Bailey and Burlingame tracts, so called, it is at least doubtful whether they would have passed, without the exception, as an appurte nance to the tracks, buildings, stations, sidiugs, and switches, and other property of the road, unless, at least, they were occupied by tracks used in the operation of the road. Indeed, they are appurtenant rather to the shops than to the railway. It is clear they ought not to be detached from the shop grounds proper, with which they are connected, for which they were purchased, and of which they form a part. If these grounds were put to a separate use, distinct from the other shop grounds,-a use connected with the customary operation of the road,-a different question might arise.

There was no error in the decree providing that the plaintiff should not be excluded from the "wye" track at Burnham, for the turning of its engines, cars, and trains, so long as it should continue to pay, for the use thereof, interest upon the cost of its construction, according to the arrangement made at the meeting of February 13, 1890, until the defendant should provide at Denver another similar track for the same purpose.

*If there be any real dispute as to which is the "main line" contemplated in the fourth paragraph of the decree of the circuit court, it should be settled by an application to that court.

4. Has the plaintiff a right, under the contract, to put into the Denver terminals its own switch-engines, switching crews, and other employes devoted to its exclusive service? Soon after the parties eutered upon the performance of this contract a controversy arose between them respecting the employment of switching crews in the several yards of the defendant company. The plaintiff, believing that it could perform such service with its own engines and employes more economically than it was being done by the defendant, notified the defendant that it would, without unnecessary delay, place therein its own engines, agents, and employes, who would perform such labor. Defendant promptly replied that it would not permit the employment of such agents, etc., and that, if any attempt were made by plaintiff to employ them, they would be ejected by force, assigning as a reason for such action that such operation of the yards would produce confusion and be attended by danger, and that the proximity of employes engaged by another company to those in its own service would create discontent and trouble between it and its own employes. Defendant subsequently consented to the employment oy the plaintiff of certain classes of laborers in its yards at South Pueblo, but has persisted in its threat to exclude any one who should be introduced into the yard at Denver. Defendant justified its action upon the ground that such exclusive employment and service were not provided for by the contract, were in violation of

its terms, and could not be permitted, by reason of the danger to life and property, etc.

The contract is silent upon this point. The Denver Company does, however, agree (article 1, § 1) to let the Chicago Company into the full, equal, joint, and perpetual possession and use of its property, and is bound to do so wherever a joint operation of such property is practicable. There is also a provision (article 2, § 2, subd. 6) for the payment by the Chicago Company, as part of the consideration, of “an amount equal to a proportionate share of the expenses actually incurred in payings proper salaries to the general superintend-* ent and subordinate employes, including switchinen, telegraph operators, train dispatchers, and others necessarily employed in the performance of the duties incident to the joint use and occupation of said railway, not including trainmen, which proportion shall be ascertained in the manner ✶ ✶ above set out." This provision seems to contemplate that the plaintiff shall employ its own operatives upon its own trains, the defendant retaining the general management of the road, and the direction of such employes as are necessary to its operation, and to the regular and ordinary movements of the trains of both companies, in order to prevent confusion and accidents.

*

This controversy with regard to the employment of switching crews was made the subject of a correspondence between the managers of the two companies early in 1889. On February 16th, Mr. Smith, the manager of the defendant company, addressed the president of the plaintiff a letter in which he stated the defendant's construction of certain provisions of the contract, upon which he had taken the advice of its counsel, who, he says, in answer to a query of his, gave it as his opinion that the Chicago, Kansas & Nebraska Company had the right, if it desired to do so, to do work in the Colorado Springs yards with its switch-engines, and to do all the necessary switching for that company with its own engines, but that this could only be done under the direction and instructions of the superintendent or other designated officers of the defendant. "The same rule," said he, “applies to this case, as stated in query one, that all movement of engines, trains, and cars must be under the sole direction of the superintendent or designated officer of the" (defendant.) "There can be no divided authority with regard to the movement of engines, trains, and cars. In this respect the yards at Pueblo, Colorado Springs, and Denver are subject to the same principle."

In reply to this letter, under date of February 22d, Mr. Cable, plaintiff's presi dent, said that they acted on the theory "that the movement of trains on your tracks must be under the direction of your operating officers, that operations in thea yards must conform to reasonable yards rules, and that in all other respects wo have exclusive control of our engines and cars. On the 26th, Mr. Smith said in reply: "This company is at all times ready

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