FEDERAl. :REPORTER.
charged his full duty to the plaintiff, .and that the defendant was not responsible to tbe' plaintiff for any act of his fellow-se:rvant in removing the plank" and putting another there 'without nailing it. The court did not charge the jury as so reque$ted,but did charge that the foreman represented the defendant about the matters which he placed in charge of the foreman; and that if the foreman directed the nailed plank to be taken away, without having the one that replaced it nailed, or notifying the plaintiff that the changehad'been made, the defendant would be responsible for the consequences to the same extent as if he had been there, and done the same that the fmportant questions were whether the foreman did this, and whether he failed to exercise the care of a prudent mlln in doing that. failure led the plaintiff to step upon the plank, as he did, without failure to exercise due care on his own part. The jury returned a verdict for the plaintiff. The defendant new trial Q,n.,accoupt of rulings.. The principal ground on which, the motion is urged, is that, what caused the plaintiff to fall was the failure to nail, the 'plank which replaced the nailed one, and this failure was ;that of a fellow-servant,. for whose .negligence the defendant would not be responsible. The other questions made are all involved in this, or are questions of fact wholly within the province oithe jury.' .' .. .' The placing the plank on the brackets, without nailing it, would not constitute actionable negligence. Armour v. Hahn, 111 U. S. 313,4 Sup. Ct. Rep. 433. That is not what the jury founded their verdict upon. The fellow-servant may have done that. What injured the plaintiff was the misleading of him into danger. The foreman, and not the fellowservant, on the finding of the jury, did that; and he represented the defendant about that; for what' he did was to direct by virtue of the defendant's authority; For such negligence or misconduct of the foreman,the defendant, as principal, appears to be liable. ' Railway GJ. v. Ros8, 112 U. S. 377, Ii Sup. Ct. Rep.ll:!4. , On the authority of that case, and the cases there cited; this motion must be overruled. Motion denied.
& parte. CHIN KING. Ex parte CHAN SAN flEE· .(Clif'cuig (Jou,/,g,D·. Oregon. OBl:NEIlB-OITIZllINIlHIP-PERSON8 BORN IN
June 25, 1888., OORPUS.
, A child born in the United ofOhineseparents is, by the rUle of the ,common lawlln\l the fourteenth amendment, a citizen of tlie United States, and. when 'restrained of its liberty of locomotion, therein. may be delivered .therefrom, 'on lUilJBa8 CO'l'JYU8, by the proper nationll,lcourt. .
(Syllabu8 by the COU'l't.)
Habeaa 00ipUB.
PaulJi. fDeady; for
Lewis ;L.MeJtrthur, for'tbeUnited States.
: ;. :. I.
DEADY,J .. 'The was allowed and issued on..June25, 1888,and they were heard together on the same daiy. The petition of Chin King states that she was born in San FranCiscQ; Cal., bll: October 10, 1868; while that of ChahSanHee atates that she was bornih Portland, Or., on March 15, 1878; and they each state that thejiare restrained of their liberty by William Robert Laird, the of the 'British bark Kitty, because· the collector of customs for this p'6tt reJuses to allow them to land from said bark, on the ground that the petitioriersare Chinese, and have no return certificate, a::- requireu by the aet of congress on that subject: but they aver that they are native-born citizens of the United States. and therefore not includoo.Within the terrrts ofsaid act. ' " The return of the' master ,to each writ states that the Kitty sailed fr9m Hong Kong for PorUand,onApril 19, 1888,and that the petitioners were passengers thereon during said voyage, and are now in custody on board the same, for the reasons stated in the petitions. On application the United States district attorney was allowed to intervene on behalf of the United States, and allege that he had no knowledge or information sufficient to form a belief as to whether the petitioners were ,born in the United States, as alleged, or not. On 'the hearing it appeared that Chung Yip Gen il;l a Chinese merchant, who haa and done business in this city for the paat 13 years and for 12 years prior thereto in San Francisco; that hew!l8 married in San Francisco about 23 years ago, and the petitioners are his daughters, the older one having been born in San Francisco, and the 'younger one in Portland, and that in 1881 the father sent them and their mother to China, from whence they were to return when they pleased. By the common law, a child born within'theallegiance-thejurisdietion-of the United States, is born a subject or citizen thereof, without reference to the political BtatU8 or condition of its parents.. McKay v. OampbeU,2 Sawy.U8; In re Look Tin Sing, 10 Sawy. 353, 21 Fed. Rep. 900; Lynchv. Olarke, 1 Sandf. eh. 583. In the latter case it was held that Julia Lynch, who was born in New York in alien parents, during a temporary sojourn by them in that city, and returned with them the same year to their native country, where she resided until her death, was an American citizen. The vice-chancellor, after an exhaustive examination of the law,dec1aredthat every person born within the dominion and allegiance of the United States was a citizen thereof, without reference to the situation of his parents. This, of course, does not include the children born in the United States of parents engaged in the diplomatic service of foreign governments, whose residence, in contemplation of public law, is a part of their own country. , The rule Of the common law on this subject has been incorporated into the Iundamental1aw of the land.' The fourteenth amendment declares:
3p6.
FEDERAL JlEPORTER.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside." In Re Look Tin Sing, 10 Sawy. 353, 21 Fed. Rep. 905, it was held that born within the {Jnited States, of Chinese parents, not engaged a in any diplomatic or official capacity under the emperor of China, is a citizen ofthe United States. The is similar to that of the petitioners. The party in question ",as born in California in 1870, of Chinese parents. In 1879 he went, to China, and returned to California in 1884, without the certificate provided for in the restriction act of 1882, or that of 1884,and was therefore denied the right to land. Mr. Justice FIELD, in delivering the opinion of the court, in which SAWYER, SABIN, and HOFFMAN says, (p. 359:) "The inability of persons to become citizens under those laws (of naturalization) in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either, as citizllns of the United States." The only point made by the district attorney against the petitioners on the question of their citizenship is that they left this country without, as he claims, any definite or fixed purpose to return. But I think the evidence does not warrant so strong a statement. For aught that appears they intended to return; and the fact that they have returned gives strength to the inference. The most that can be said il;l, there was no time fixed for their return. And that isthe case with hundreds of minor American citizens, who go abroad yearly, for nurture and education. But it seems that the citizenship oLthe petitioners would not be affected by, the fact, iqhey had never come back, unless it also appears that they had in some formal and affirmative way renounced the same. . However,. ipmy j udgment,a father cannot deprive his minor child of the 8tatus of;American citizenship, impress,ed upon it by the circumstances of its birth under the ,constitution and within the jurisdiction of the United Stl:l,tea. This 8tatUB, once acquired, can only be lost or changed by the act of tlleparty when arrived at majori1jy, and the consent of the government. .' " By section 2 ofartic1e4 of the ,constitution it is provided; "The citbe, entitled to all privileges and immunities of izens of eli-ch citizens in the !levllral states;" . ,It has always been held thatthe privileges and immunities there referred to are fundamental; and that a citizen of one state may, at least, ,under this provision, pass thJ;ough or reside in any other state of the :Union for the ordinary pursuits or purposes of life. Corfield v. CoryeJ)" 4, Wash. C. C. 380; Paul v. Virginia, 8 Wall. 180. The action of the collector in these cases has the effect, and is 80 intended, to deny these citizens of the United States the right of free locomotion within, the same,.,.-the right to come into, pass through, or reside in this state,' and is therefore contrary to and in violation of the constitutional p,rovision guarantying such right to every citizen. Sections 751, 752, ,and 753 of the Revised Statutes provide, ineffect,that the courts
IN REJAEHN&
857
of the United States and the judges thereof shall have'power,by habeas corpus, to deliver a person held in custody or restrained of his liberty in violation ofthe constitution or of a law or treaty of the United States. The petitioners, as we have seen, are restrained of their liberty in vi· olation of the constitution, and therefore this court has jurisdiction to discharge them on a habeas corpus. The petitioners are discharged from custody.
InreJ AEHNE. (Oi'l'cuit Oourt, 8. D. Net/) York. June 11, 1888.) BBmERy-CONSTlTUTIONAL LAW.
On habeas corpus by a petitioner who had been indicted, convicted, anli imprisoned for bribery as alderman, under Pen. .code N. Y. § 72, for discharge on the ground that said section is.unconstitutional as an ex post facto law, because, from the effect given it by section 2143 of the consolidation act. it repeals by implication section 58 of the latter act, prescribing a less punishment for such offense. held, that section 72 must be construed as prospective in its operation. and constitutional. Following People v. O'Neill, 16 N. E. Rep 68.
Petition for Writ of Habeas Corpus. Rogr:r M. Sherman, for petitioner. John R. Jl'ellows, Dist. Atty., and A. R. Parkr:r, Asst. Dist. Atty., for the People. BENEDICT ,J. This is an application for a writ of habeas corpus to bring before this cotj.rt Henry J. Jaehne, for the purpose of inquiring ae.to. the legality of his detention in the state prison, where he is confin4;ld a sentence·of 'the aupreme court of the state of New York. The aud convicted, under the provisions ofse(ltion 72 of tl)ePenal Code of New York, for the crime of bribery, committed by him.while.a member of the common council of the city of New York. Pursuant to that provision of statute, he was sentenced to be imprisoned in the state prison for the term of nine years and ten months, two years of which term have already expired. The application for relief from that judgment at the hands of this court is based :upon the propositron that section 72 of the Penal Code, with the force and effect given it by section 2143 of the consolida.tionact, under the decision of the court of appeals, is an ex post facto law, Rnd therefore void, because contrary to the constitution of the United States. In considering this proposition it is to be obsel'yeq that the question so earnestly discussed in behalf of the prisoner-whether section 58 of the consolidation act was made of no effect, and section 72 of the Penal Gode, by section 2143 Of the consolidation act, made the law incaseS of a.ldermanic bribery in the city of New York-is not presented for the decision of this court by this application; The petitioner is not imprisoned by virtue of section 58 of the consolidation act, ',but by ,; .... '