any existence. We are to look at this question!
as if there had been only the Penal Statute en-
acted. Now if valid, whether such a penal
statute has any operative force depends upon
subsequent legislation. It cannot be doubted
that Congress may legislate with reference to
the happening of future events. Its legislation
may be prospective and contingent upon future
events. In case of a civil war Congress might
pass, doubtless, a valid enactment that upon
the close of that war certain taxes should be
collected. But the condition in this case is not
something depending upon outside and prob-
able occurrences; it is a condition depending
entirely upon the will of succeeding Congresses.
There is no succession of time, no possible
change in outward events, that can bring the
condition to pass.
It is a condition that de-
pends solely upon the succeeding Congress. If
such legislation be not absolutely invalid, it is
certainly very unfortunate.

Further than that, while the Act of 1870 was a nullity, it must be assumed as a matter of fact that in framing the Act of 1876 the penalties imposed were with reference to the terms of the Statute of 1870. Can it be assumed that | Congress would have imposed such penalties upon trespasses upon the registration of trademarks, if the broad, general and comprehensive Act of 1870 had not been supposed to be in force. In this trademark case it was pressed upon the supreme court that, as Congress had power to legislate in reference to trademarks in limited cases, the court should uphold the statute as good in reference to such cases; but it properly answered that it could not assume that if Congress had known that it had no general power, but only in limited cases, it would have passed any Act. So and with more force must it be held that if Congress is legislating in respect to penalties upon the theory that it has general and comprehensive power, it cannot be assumed that it would impose the same penalties provided it knew that it only had a limited and narrow power.

Again, when the Act of 1881 was passed, if Congress had intended that penalty should be imposed for a trespass upon the rights conferred by that statute, or if it had intended that the Act of 1876 should be revivified and operate upon the Act of 1881, it was very easy to say so. Its silence in this respect is cogent evidence that it did not understand or intend that the Penal Statute should be considered a part of present and valid law. And that assumption is strengthened by the fact that it had before it for consideration this passage from the opinion of the supreme court in which it is broadly stated that the Act of 1876 had fallen with the Act of 1870. Whatever may be true as to the full meaning of that decision or as to the general power of Congress to impose penalties for trespasses, upon rights having no existence, it had before it the general affirmance by the court that the Law of 1876 had fallen, and it must be assumed that if it meant that it should stand and be vivified, or that any penalties should be imposed for violations of the Law of 1881, it would have so stated.

These considerations convince me very strongly that the Act of 1876 has, as the supreme court said, fallen with the Act of 1870, and it is as much a dead letter as the Act of 1870, and was not vivified or given operative force by the Act of 1881. Of course in that view of the law the demurrer will be sustained. I have not considered the other questions raised by the demurrer. Expressing my opinion upon this one must not be taken as implying any dissent from the views expressed by my Brother Thayer in the opinion heretofore filed by him.

I have chosen to rest my opinion upon this question of the invalidity of the Act of 1876 because if that be true there can be no remedy by changing the form of the indictment. There being no penal legislation by Congress there can be no indictment found.

MISSISSIPPI SUPREME COURT.

LOUISVILLE, NEW ORLEANS &
TEXAS R. CO., Appt.,

v.

STATE OF MISSISSIPPI. 1. The Mississippi Statute of March 2, 1888, § 1, requiring all railroads (other than street railroads), carrying passengers, to provide equal but separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the cars by a partition, is not invalid, as an interference with interstate commerce, as it refers only to the carriage of passengers between points within the State.

2. The above Act was not repealed by the Act of March 14, 1888, § 3.

The defendant company was indicted for omitting and neglecting to provide separate accommodations on its trains for white and colored persons, as required by Act of March 2, 1888. From a judgment of conviction defendant appeals.

The further facts and a copy of the statute appear in the opinion.

Messrs. W. P. & J. B. Harris and Yerger & Percy for appellant.

Mr. Miller, Atty-Gen., for the State.

Cooper, J., delivered the opinion of the court:

On the 2d of March, 1888, the Legislature of this State passed an Act entitled "An Act to

3. Transportation of persons is as much Promote the Comfort of Passengers on Railcommerce as transportation of property.

(June 10, 1889.)

road Trains," which is as follows: "Section 1. That all railroads carrying passengers in this

APPEAL from a judgment of the Circuit State (other than street railroads) shall provide

Court of Tunica County, J. H. Wynn, J. equal but separate accommodations for the Affirmed. white and colored races, by providing two or

more passenger cars for each passenger train, | there was trial and conviction, and the defendor by dividing the passenger cars by a parti- ant appeals. tion so as to secure separate accommoda

tions.

"Sec. 2. That the conductors of such passenger trains shall have power, and are hereby required, to assign each passenger to the car, or the compartment of a car (when it is divided by a partition), used for the race to which such passenger belongs, and should any passenger refuse to occupy the car to which he or she is assigned by such conductor, said conductor shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railroad company shall be liable for any damages in any court in this State.

It is assumed by counsel for appellant that the Act under consideration was intended to regulate, not only the transportation of passengers taken up and set down within the State, but those taken up within the State to be carried without, those taken up without to be brought within, and those taken up without to be carried across the State and into other States. An examination of the record shows that the omission for which the indictment was found was the neglect to provide the "separate" accommodations required by § 1 of the Act, and not for failing to assign to such separate car or compartment interstate travelers upon appelSec. 3. All railroad companies that shall re- lant's train. We are not, therefore, called upfuse or neglect, within sixty days after the ap-on to determine whether the legislation in quesproval of this Act, to comply with the require- tion would be valid if applied to persons other ments of section one of this Act, shall be than those taken up within the State to be set deemed guilty of a misdemeanor, and shall, down within it. upon conviction in a court of competent jurisdiction, be fined not more that five hundred 'dollars, and any conductor that shall neglect or refuse to carry out the provisions of this Act shall, upon conviction, be fined not less than twenty-five nor more than fifty dollars for each offense."

On the first day of August, 1888, the appellant was indicted in the Circuit Court of Tunica County for failure to comply with $1 of the Act above, and in defense pleaded that it owned and operated a continuous road running from the City of Memphis, in the State of Tennessee, through and across the State of Mississippi and to the City of New Orleans, in the State of Louisiana, carrying on its passenger trains passengers of both the white and colored races from Memphis and other points in the State of Tennessee destined to New Orleans and other points in the State of Louisiana, and other States in the United States, and so carrying passengers of both races from New Orleans and other points in the State of Louisiana destined to Memphis, Tennessee, and other points in the State of Tennessee, and elsewhere throughout the United States; "that it doth now, and hath at all times, and on all occasions, provided equal but not separate accommodations for passengers of the white and colored races; that to provide separate accommodations for the two races would greatly increase the cost of carrying the interstate passengers aforesaid, and greatly hinder, delay, and obstruct the defendant in making its interstate connec tions with other carriers of passengers, and that it hath not since long prior to the first day of May, 1888, carried any passengers in the County of Tunica, or within the limits of the State of Mississippi, save only upon its trains regularly engaged and operated in the interstate carriage of passengers aforesaid, and in all instances actually carrying such interstate passengers: the right, privilege and immunity of doing which, free from any governmental regulation or control thereof, save by the Congress of the United States, the defendant doth plead and claim under article 1, 8, of the Constitution of the United States, and this the defendant is ready to verify; wherefore," etc. To this plea a demurrer was interposed by the State, which was sustained by the court, and thereupon, a plea of not guilty being filed,

Confining our attention to the question necessarily involved, it being also the distinct issue presented by the plea of the company, the inquiry is whether the State is precluded from requiring separate accommodations for purely domestic travelers of different races, because to furnish the same would impose a burden upon the carrier, or because the requirement affects interstate travel upon the trains of the company. Upon this question, this court sustains the relation of an inferior tribunal, and, without regard to the opinions of its members, must conform to the decisions of the Supreme Court of the United States, by which court only can an authoritative decision be made. Without attempting to argue for or against any conclusions reached by that court, we shall endeavor only to deduce from them the principles proper to be applied to the decision of the question involved.

The development of an immense interstate commerce, with its incidental multitude of phases and ramifications, has disclosed to the generation of this day the magnitude of the power delegated to the federal government by that clause of 8, art. 1, of the Constitution by which Congress is given power "to regulate commerce with foreign nations and among the States, and with the Indian tribes." It is not surprising that the recognition of its extent has been of gradual growth in the court called upon to construe it, nor that in judicial utterances there have been inconsistent and conflicting expressions. It does not lie within our province to point out or criticise real or supposed inconsistencies, but taking the more recent decisions of that court, where they have limited or overruled prior cases, to apply the principles, as we understand them to be now announced, to the cause before us. But it does not follow that we are to treat decisions not clearly overruled as no longer binding because remarks are to be found in later cases which, somewhat extended, may be thought to be applicable to the facts here involved.

We consider it to be settled, as stated by counsel for appellant, that transportation of persons is as much commerce as transportation of property, and as a corollary, that the interstate transportation of persons is interstate commerce, and that the State may not regulate such commerce, since it is national in char

acter, and requires uniformity of regulation. | fined to so much thereof as affirmed the right It may also be conceded that absence of legis- of the State, in the absence of legislation by lation by Congress on the subject is indicative Congress, to regulate the transportation of of its will that such commerce shall be free property or persons from points within to and untrammeled. The question returns, wheth- points without the State. er the Act under consideration is a regulation We are not warranted in extending the effect of interstate commerce, and upon its solution of the decision so as to include denials of the hinges the controversy. The cases of Hall v. right of the State to regulate domestic transDe Cuir, 95 U. S. 485 [24 L. ed. 547], and Wa-portation, though conducted by carriers enbash, St. L. & P. R. Co. v. Illinois, 118 U. S. gaged in interstate commerce. Indeed, the ex557 [30 L. ed. 244], are relied upon as decisive press language of the court excludes such conagainst the validity of the statute. We do not clusion, for the majority opinion declares that so understand them. Hall v. De Cuir was a "if the Illinois statute could be construed to case in which the validity of a statute of the apply exclusively to contracts for a carriage State of Louisiana was involved. The statute which begins and ends within the State, disin effect required all persons engaged within connected from a continuous transportation that State in the business of common carriers of through or into other States, there does not seem passengers to admit all persons traveling on the to be any difficulty in holding it to be valid." conveyance employed in the business to equal privileges in all parts of the conveyance without discrimination on account of race or color, and a right to recover actual and exemplary damages was given to any person injured by the refusal of the carrier to comply with the law. De Cuir, a passenger from one point to another within the State, was refused access to the cabin reserved for white passengers on a steamer engaged in interstate business on the Mississippi River, and brought suit against the owner of the boat to recover damages. The statute was held unconstitutional by the Supreme Court of the United States, as being a regulation of interstate commerce. As ob served by this court in Stone v. Yazoo & M. V. R. Co. 62 Miss. 607, the State of Louisiana had no relation to or control over the instruments by which the commerce was conducted. It was an attempt to regulate an interstate carrier, acting under license from the United States and plying the navigable waters of the same. The State had no control over the way, the boat, or the owner. It was an attempt to regulate that which it did not create or license, and which it might neither control nor destroy.

The question here is a different one from either of those involved in these cases. It is more nearly akin to that decided in Stone v. Farmers Loan & Trust Co. 116 U. S. 307 [29 L. ed. 636], in which the right to regulate domestic commerce was considered and upheld. It is a matter of common knowledge that there are, at present, many state commissions for the regulation of state commerce, and one by the general government for the regulation of that between the States. Each occupies a field from which the other is excluded, and each is essential, or deemed so to be, to full control of the commerce of the country. By what authority can the transportation of domestic trav elers be controlled if not by that of the State? Congress has no jurisdiction over the subject, it being confined to commerce "with foreign nations, and among the States, and with the Indian tribes." Suppose Congress should deem it advisable to enact a law similar to our statute for the regulation of interstate transportation of passengers, could it be contended that it controlled as to passengers taken up and set down within a State? But how does the statute interfere with interstate commerce, if it be true that it has no application save to those traveling wholly within the State?

The language of the court, as applied to the facts of this case, is compatible with a liberal exercise by the State of power over its own cor- It is manifest from the plea that the statute porations, which live and move and have their is resisted because it imposes a burden, not on being by virtue of its laws. It is urged, how-commerce, but upon the carrier. The addition ever, that in Wabash, St. L. & P. R. Co. v. of a car at the state line to each of its trains Illinois, supra, it has been held equally incom- may impose additional expense on the competent for the State to regulate interstate company, but how it is a burden or obstruction to merce conducted over artificial ways created by the State, or under its authority, as to regulate commerce on the navigable waters of the United States. In that case the only question presented or decided was whether a state statute, controlling the rates to be charged by the common carrier for transportation of freight within the State could be applied to a contract for continuous transportation from a point without to a point within the State. It was held that it could not, since the contract was for interstate commerce, and as such not within state regulation or control. In delivering the opinion of the court, Miller, J., reviews the cases of Munn v. Illinois, 94 Ú. S. 114 [24 L. ed. 77]; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155 [24 L. ed. 94]; and Peik v. chicago & N. W. R. Co. 94 U. S. 164 [24 L. ed. 97], and declares much that was said in them to have been decided without sufficient consideration. His criticism of those cases was, however, con

commerce it is difficult to perceive. We do not know of any decision in which the supposed burden of commerce, easily obviated by the act of the corporation, has been held to invali date a statute in the interest of the carrier. The United States have no concern with the policy, merely, of domestic state laws. It may be that they are harsh, or unfair, or unjust. Admit it, and what follows? Surely not that they are invalid, but only that they should be repealed by that power having jurisdiction of the subject. It would seem to follow that since the transpor tation of passengers and of property stand upon the same footing, regulations of property with in state limits being valid, regulations touching passengers of the same character, i. e., domestic travelers, are also valid.

We do not think the Act under consideration was repealed by section 3 of the Act of March 14, 1888.

The judgment is therefore affirmed.

UNITED STATES COURT OF CLAIMS.

The claimants made application to the secre1. The jurisdiction of this court to find the tary of the treasury to refund the money so facts, make conclusions of law, and give opinions collected, in exercise of his power under secin matters referred to it by heads of the execution 26 of Act of June 26, 1884, chap. 121 (23 tive departments, without entering judgments, is Stat at L. 59), which is as follows: not restricted by section 1066, Revised Statutes,

THE facts are stated in tmpson, Jr., for upon that application, the secretary of the

We shall therefore proceed to a consideration of the law upon the facts admitted.

by section 12 of the Act of March 3, 1887, be- | ions of the Immigration Act are in conflict fore cited. The Acts conferring jurisdiction with a pre-existing treaty with a foreign nation, upon the court to find the facts, make conclu- the provisions of the Act must prevail in all sions of law, and give opinions in matters re- the judicial courts of this country. The claimferred by heads of the executive departments ants' counsel seeks to have great force given to without entering judgments, are of later date the word "improperly" in the refunding secthan the Revised Statutes, and they contain no tion, 26, of the Act of 1884, berein before quoted. such restriction. It is sufficient to refer to the and he argues that if there be such conflict, the Chickasaw Nation Case for a full exposition of secretary may regard the tax as improperly colour views on the subject. lected, because it might involve the country in a controversy with a foreign nation. We cannot concur in these positions taken by the claimants. In our opinion the word "improperly" adds nothing in effect to the words "illegally or excessively imposed," with which it is grouped in the section, and that if the provisions of the Act are to prevail in all the courts of this country, as the supreme court says they are, they are equally binding on the secretary of the treasury, who must obey the law as all officers of the government are bound to do. See also Bartram v. Robertson, 122 U. S. 117 [30 L. ed. 1119]; Whitney v. Robertson, 124 U. S. 190 [31 L. ed. 386]; Kelly v. Hedden, 124 U. S. 196 [31 L. ed. 389].

The Treaty between the United States and Denmark (8 Stat. at L. 340, and 11 Stat. at L. 720) contains the following articles:

"Art. I. The contracting parties desiring to live in peace and harmony with all the other nations of the earth by means of a policy frank and equally friendly to all, engage mutually not to grant any particular favor to other nations in respect of commerce and navigation which shall not immediately become common to the other party, who shall enjoy the same freely if the concession were freely made, or on allowing the same compensation if the concession were conditional."

"Art. II. The contracting parties being likewise desirous of placing the commerce and navigation of their respective countries on the liberal basis of perfect equality and reciprocity, mutually agree that the citizens and subjects of each may frequent all the coasts and countries of the other (with the exception hereinafter provided for in the sixth article), and reside and trade there in all kinds of produce, manufactures, and merchandise; and they shall enjoy all the rights, privileges, and exemptions in navigation and commerce which native citizens or subjects do or shall enjoy, submitting themselves to the laws, decrees, and usages there established to which native citizens or subjects are subjected. But it is understood that this article does not include the coasting trade of either country, the regulation of which is reserved by the parties, respectively, according to their own separate laws."

The claimants urge that the collection of this duty or tax is in violation of that Treaty for two reasons:

1. The Act of 1882 excepts citizens of the United States from those passengers on account of whom the duty is levied, and so the claimants allege that the citizens of Denmark are entitled by the Treaty to the same exemption.

2. The Act of June 26, 1884, chap. 121, § 22 (22 Stat. at L. 58), makes a further exception of "passengers coming by vessels employed exclusively in trade between the ports of the United States and the ports of the Dominion of Canada or the ports of Mexico," and so the claimants allege, this being a grant of a particular favor to Mexico and Canada, the citizens of Denmark are entitled to the same favor by reason of the first article of the Treaty.

There is another point raised in these caseswhich was not presented in the Head-Money Cases, and which must be considered here. The claimants insist that the citizens of Denmark are exempt from the provisions of the Immigration Act of 1882, by reason of the following section of the Revised Statutes, found at the end of chapter 3, entitled "Tonnage Duties," in title 48, entitled "Regulation of Commerce and Navigation:"

"Sec. 4227. Nothing contained in this title shall be deemed in any wise to impair any rights and privileges which have been, or may be, acquired by any foreign nation under the laws and treaties of the United States relative to the duty on tonnage of vessels, or any other duty on vessels."

The argument is that the Immigration Act relates to commerce and navigation, and so is in amendment of said title 48 of the Revised Statutes, and is to be construed as though it were incorporated into and formed part of that title, where it would be limited by the provisions of said section 4227.

In our opinion this argument is not sound and we cannot adopt it as leading to the true construction of the statutes. While the Act does, in a certain sense, relate to commerce and navigation, we are unable to find any of the numerous sections of the nine chapters of title 48 of the Revised Statutes which are in the least amended or affected by it. The Act contains entirely new and independent legislation, and makes no reference to pre existing laws. It is entitled "An Act to Regulate Immigra tion," and its place in the Revised Statutes, if it were to be incorporated therein, would be in "Title 29-Immigration.”

Moreover, section 4227, upon which the In the Head-Money Cases, 112 U. S. 580 [28 claimants rely as controlling this Act of 1882, L. ed. 798], to which the present claimants was a reproduction in condensed language of were parties, the record and briefs show that section 3, chapter 107, of the Act of April 27, both these points were presented to the court 1816 (3 Stat. at L. 314), § 1, chap. 3, of the Act and relied upon by the plaintiffs. From the of January 14, 1817 (3 Stat. at L. 344), and § 15. opinion it is apparent that they made no im chap. 163, of the Act of July 14, 1862 (12 Stat. pression upon the court. The cases were de- at L. 558), wherein the provisions relate only to cided in favor of the defendants, and it was duties on tonnage, and it is now found in a distinctly held that even if any of the provis-chapter of the Revised Statutes entitled Tonnage: