*546 P ETITION for a writ of mandamus to the States for the Ninth Circuit to entertain an appeal from the Supreme Court of the Territory of Hawaii. Dismissed. Statement by Mr. Justice Gray: This was a petition by the Wilder's Steamship Company, a corporation organized and existing under the laws of the Territory of Hawaii, for a writ of mandamus to the United States circuit court of appeals for the ninth circuit to entertain an appeal from the supreme court of the territory of Hawaii. On December 27, 1899, the steamer Claudine, one of the petitioner's steamships, came into collision with the barkentine William Carson. On February 5, 1900, the owners of the William Carson and of her cargo filed a libel in admiralty against the steamship company in the circuit court of the first judicial circuit of the Republic of Hawaii. On May 7, 1900, that court rendered a decree against the steamship company in the sum of $55,000, upon the ground that the collision was caused by the fault of the steamship company, with no fault or negligence on the part of those in charge of the William Carson. From that decree an appeal was taken to the supreme court of the Republic of Hawaii, as provided by the then existing law of the Republic. On November 9, 1900, the cause having come on regularly to be heard before the supreme court of the territory of Hawaii, the decree was affirmed by that court. On the same day, an appeal was claimed from that court to the United States circuit court of appeals for the ninth circuit, but was denied, for want of jurisdiction, by the supreme court of the territory on November 7, 1900, and by the circuit court of appeals on April 1, 1901. 13 Hawaii, 174; 47 C. C. A. 243, 108 Fed. 113. On March 5, 1901, the steamship company presented to this court a petition praying that an order, under § 15 of the act of March 3, 1891 [26 Stat. at L. 826], chap. 517, assigning the territory of Hawaii to the ninth circuit, might be made nunc pro tunc as of June 15, 1900, the date at which the act of Congress of April 30, 1900 [31 Stat. at. L. 141], chap. 339, entitled "An Act to Provide a Government for the Territory of Hawaii," took effect. On April 12, 1901, the petitioner filed in this court a petition praying for a similar order, and further praying that a writ of mandamus might issue to the United States circuit court of appeals for the ninth circuit to set aside its order denying the appeal, and to entertain the cause. On April 15, 1901, this court "ordered that the territory of Hawaii be, and it is hereby, assigned to the ninth judicial circuit under § 15 of the judiciary act of March 3, 1891," gave leave to file this petition for a writ of mandamus, and awarded a rule to show cause, returnable on May 13. On May 3, after that order, the petitioner presented to the circuit court of appeals for the ninth circuit another petition for the the supreme court of the territory of Hawaii; and that petition was denied. On May 13, the circuit court of appeals for the ninth circuit made a return, that upon the facts stated in the petition it had not jurisdiction of the appeal; that the question whether it had such jurisdiction came before it for adjudication and was judicially determined; and that its decision in the matter constituted a final judgment, properly subject to review in this court by writ of certiorari. The case was submitted to this court upon the petition for a mandamus, the return thereto, and a motion of the petitioner to file in evidence its petition of May 3 to the circuit court of appeals and the disallowance thereof. The Republic of Hawaii, before its annexation to the United States, had a fully organized government. The judicial system consisted of courts of original and appellate jurisdiction, whose powers were defined by the Constitution and statutes of the Republic. The circuit courts were the courts of general original jurisdiction, and had power to determine all civil causes in admiralty. In such causes, as well as in other cases, the supreme court had appellate jurisdiction, and its decrees, by express provision of the Constitution, were made "final and conclusive." Constitution of Hawaii, arts. 8286. Ballou's Civil Laws of Hawaii, 1897, §§ 1105, 1136, 1144, 1145, 1164, 1430, 1433, 1434. By the Joint Resolution of the Congress of the United States of July 7, 1898, resolution 55, the Hawaiian islands were annexed to the United States, and it was provided that "until Congress shall provide for the government of such islands, all the civil, judicial, and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned;" and that "the municipal legislation of the Hawaiian islands," "not inconsistent with this joint resolution, nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." 30 Stat. at L. 750. On July 8, 1898, "in the exercise of the power thus conferred upon him by the Joint Resolution, the President hereby directs that the civil, judicial, and military powers in question shall be exercised by the officers of the Republic of Hawaii as it existed just prior to the transfer of sovereignty, subject to his power to remove such officers and to fill the vacancies." Letter of Secretary of State to Minister Sewall; Report 305. H. R. 56th Congr. 1st sess. p. 3. On August 12, 1898, the sovereignty of the Hawaiian islands was transferred to the *547 "Sec. 5. The Constitution and, except as herein otherwise provided, all the laws of the United States which are not locally inapplicable shall have the same force and effect within the said territory as elsewhere in the United States." United States. The act of Congress of ed States for the said district, and said April 30, 1900, chap. 339, entitled "An Act judge, attorney, and marshal shall hold ofto Provide a Government for the Territory fice for six years unless sooner removed by of Hawaii," which by its terms took effect the President. Said court shall have, in adJune 15, 1890, declared in § 1 that the dition to the ordinary jurisdiction of disphrase "the laws of Hawaii," as therein trict courts of the United States, jurisdicused, should mean the Constitution and tion of all cases cognizable in a circuit court laws of the Republic of Hawaii in force at of the United States, and shall proceed the date of that transfer; and in § 2 that therein in the same manner as a circuit the islands so acquired should be known as court; and said judge, district attorney, and the territory of Ĥawaii; and contained the marshal shall have and exercise in the terfollowing provisions: ritory of Hawaii all the powers conferred by the laws of the United States upon the judges, district attorneys and marshals of district and circuit courts of the United States. Writs of error and appeals from said district court shall be had and allowed to the circuit court of appeals in the ninth judicial circuit in the same manner as writs of error and appeals are allowed from circuit courts to circuit courts of appeals as provided by law; and the laws of the United States relating to juries and jury trials shall be applicable to said district court. The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as be tween the courts of the United States and the courts of the several states, shall govern in such matters and proceedings as between the courts of the United States and the courts of the territory of Hawaii." 31 Stat. at L. 158, chap. 339. "Sec. 6. The laws of Hawaii not inconsistent with the Constitution or laws of the United States or the provisions of this act shall continue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States." Section 7 repealed the Constitution and various laws of the Republic of Hawaii, including those on maritime matters. 31 Stat. at L. 141, 142, chap. 339. "Sec. 10. All rights of action, suits at law and in equity, prosecutions and judgments existing prior to the taking effect of this act shall continue to be as effectual as if this act had not been passed." "All criminal and penal proceedings then pending in the courts of the Republic of Hawaii shall be prosecuted to final judgment and execution in the name of the territory of Hawaii; all such proceedings, all actions at law, suits in equity, and other proceedings, then pending in the courts of the Republic of Hawaii, shall be carried on to final judgment and execution in the corresponding courts of the territory of "Hawaii; and all process issued and sentences imposed before this act takes effect shall be as valid as if issued or imposed in the name of the territory of Hawaii." 31 Stat. at L. 143, chap. 339. "Sec. 81. The judicial power of the territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish. And until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force, except as herein otherwise provided." "Sec. 83. The laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this act, are continued in force, subject to modification by Congress or the legislature." 31 Stat. at L. 157, chap. 339. "Sec. 86. There shall be established in said territory a district court to consist of one judge, who shall reside therein and be called the district judge. The President of the United States, by and with the advice and consent of the Senate of the United States, shall appoint a district judge, a district attorney, and a marshal of the Unit Mr. Duane E. Fox submitted the case for the petitioner, and Messrs. Nathan H. Frank, and Kinney, Ballou, & McClanahan were with him on the brief. Messrs. Charles Page, E. J. McCutchen, C. H. Lindley, Henry Eickhoff, and Paul Neumann for respondents. Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: We are of opinion that the appeal from the supreme court of the territory of Hawaii to the United States circuit court of appeals for the ninth circuit was rightly disallowed. The libel in admiralty was originally brought, and a decree made, in a court of the Republic of Hawaii having jurisdiction of the cause, and an appeal from that de cree was duly taken to the supreme court of Hawaii, as provided by the then existing law of the Republic. While the appeal was lawfully pending in the courts of Hawaii, Congress, by the act of April 30, 1900, chap. 339, provided a government for the territory of Hawaii, establishing therein a supreme court and other courts, and enacting, in § 10, that "all actions at law, suits in equity, and other proceedings, then pending in the courts of the Republic of Hawaii, shall be carried on to final judgment and execution in the corresponding courts of the territory of Hawaii." This appeal in admiralty was one of the "other proceedings" then pending in the courts of the Republic of Hawaii, which were "to be carried on to final judgment and execution in the corre sponding courts of the territory of Hawaii." On November 9, 1900, the cause having •551 come on regularly to be heard before the supreme court of the territory, in accordance with the act of Congress, the decree below was affirmed; and on the same day an appeal from the decree of affirmance was claimed to the United States circuit court of appeals for the ninth circuit. (long before the annexation of Hawaii), establishing circuit courts of appeals, which provides that "the circuit court of appeal, in cases in which the judgments of the circuit courts of appeal are made final by this act" (which include cases in admiralty), "shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of the several territories as by this act they may have to review the judgments, orders, and decrees of the district court and circuit courts; and for that purpose the several territories shall, by orders of the supreme court, to be made from time to time, be assigned to particular circuits." 26 Stat. at L. 830. But on November 9, 1900, when this appeal to the circuit court of appeals for the ninth circuit was claimed from the supreme court of the territory of IIawaii, as well as on April 12, 1901, when this petition for a writ of mandamus was filed, this court had made no order assigning the territory of Hawaii to any judicial circuit. The order made by this court on April 15, 1901, assigning the territory of Hawaii to the ninth judicial circuit, was not, as this petitioner requested, made as of a former day, but took effect only from its date. And no order of this court, assigning the territory of Hawaii to a judicial circuit under the act of 1891, can give a right of appeal inconsistent with the provision of § 86 of the later act of 1900 restricting such appeals to cases in which by the laws of the United States they are allowable to the courts of the United States from the courts of the several states. The act of Congress of 1900 contains no provision authorizing such an appeal. The petitioner refers to 86 of that act, which established in the territory a district court of the United States with the powers of a circuit court of the United States. But that court is given no appellate jurisdiction. The provision allowing writs of error and appeals from that court to the circuit court of appeals for the ninth judicial circuit does not touch appeals from the supreme court of the territory of Hawaii. And the remaining clause as to appeals, writs of error, removals of causes, and other matters and proceedings between the courts of the United States and the courts of the territory of Hawaii provides that they shall be governed, not by the laws applicable to other territories, but by the laws of the United States as to such matters and proceedings "as between the courts of the United States and the courts of the several states." Congress may have considered that, owing to the great distance of the territory of Hawaii from the continent, the appellate jurisdiction over that territory should be more restricted than over other territories, and should extend only, as in the case of the several states, to judgments against a right claimed under the Constitution, laws, or treaties of the United States. But whatever may have been the reasons which influenced Congress, its language is too plain to be misunderstood. Cases in admiralty, brought after the act of 1900 took effect, must, of course, be brought in the district court of the United States, and subject to the right of appeal therein provided to the circuit court of appeals for the ninth circuit. But as to cases in admiralty pending in the courts of Hawaii when the act took effect, there is no special provision, and they therefore remain, like other civil cases, to be finally determined in the courts of the territory of Hawaii, under the general provision of 10. In cases in admiralty, as in all other cases pending in the courts of Hawaii at that time, it was within the discretionary power of Congress to provide that they should remain within the jurisdiction and determination of the courts of the territory; and it has clearly so provided as to pending suits of all classes. The fact that Argued October 25, 1901. Decided January in a state cases in admiralty cannot be brought in its courts, but only in the courts of the United States, affords no reason for implying that Congress, without any language expressing such an intention, meant to vest in any court of the United States either original or appellate jurisdiction in cases in admiralty pending in the courts of Hawaii when this act of Congress took effect. Reliance is placed by the petitioner on § 45 of the act of March 3, 1891, chap. 517 Petition dismissed. (183 U. S. 589) CHICAGO, ROCK ISLAND & PACIFIC v. Corporations-acceptance of condition in act of incorporation-due process of law. This case is governed by the decision in the case of Chicago, R. I. & P. R. Co. v. Zernecke, post, 229. [No. 57.] 6, 1902. 'N ERROR to the Supreme Court of the I State of Nebraska to review a judgment which affirmed a judgment of the District Court of Thayer County entered upon a ver dict for plaintiff in an action to recover damages from a railroad company for the death of a passenger. Affirmed. See same case below, 59 Neb. 698, 82 N. W. 1119. The facts are stated in the opinion. *590 Messrs. W. F. Evans and M. A. Low for plaintiff in error. Messrs. Thomas C. Munger, John M. Stewart, and A. E. Harvey for defendant in error. Mr. Justice McKenna delivered the opinion of the court: This action was brought in the district court of Thayer county, Nebraska, by the defendant in error as the administrator of the estate of John R. Mathews, deceased, against the plaintiff in error, for damages, under a statute of the state, for the death of Mathews, caused by the derailment of the train of plaintiff in error upon which Mathews was a passenger. The record presents the same questions which were presented and passed on in the case of the plaintiff in error herein against Zernecke, administratrix, No. 58 of this term, just decided. 183 U. S., post, 229, 22 Sup. Ct. Rep. 229. As in the latter case the ground of action in the case at bar was negligence in the railroad company and its servants. The answer of the company denied negligence, and alleged that the derailment was caused by some person or persons unknown to the company, and not in its employment or under its control, who wilfully, maliciously, and feloniously removed and displaced from the track certain spikes, nuts, angle-bars, fishplates, bolts, and rails, and otherwise tore up and destroyed the track. The company also alleged care in the maintenance of its track and the management of its train. such death has resulted to the next of kin, in this case the father." The jury returned a verdict for defendant in error for $1,500, upon which judgment was entered. The judgment was affirmed by the supreme court of the state, upon the decision in Chicago, R. I. & P. R. Co. v. Zernecke, 59 Neb. 689, 82 N. W. 26, and this writ of error was then allowed. The facts, contentions, and questions be ing the same as those presented in the Zernecke Case, 59 Neb. 689, 82 N. W. 26, for the reasons stated in the opinion in that case the judgment is affirmed. (183 U. S. 582) CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Plff. in Err., v. BERTHA ZERNECKE, Administratrix of the Estate of Ernest H. Zernecke, Deceased. Corporations-acceptance of condition in act of incorporation—due process of law. A corporation incorporated under the Nebraska railroad incorporation act of 1867 accepts as a part and condition of its charter the rule of liability for injuries to passengers expressed in 3 of that act as absolute, unless the injury was one caused by the passenger's own criminal negligence or by his violation of some rule of the railroad company brought to his actual notice, and such company cannot complain that by such section it is deprived of its property without due process of law. [No. 58.] The petition alleged that the plaintiff in error "was a corporation, duly incorporated under the laws of the state of Nebraska," and the admission of the answer was that defendant in error, "at all times mentioned Argued October 25, 1901. Decided January in said petition, was a corporation organized and existing under and by virtue of the laws of the states of Illinois and Iowa, and a domestic corporation of the state of Ne braska." The case was tried before a jury. The evidence of defendant in error (petitioner) was that at the time Mathews was killed he was being transported as a passenger over the railway of plaintiff in error, and that the train upon which he was riding was thrown from the track, resulting in his death and the death of ten other persons. The plaintiff in error then offered witnesses and depositions to sustain the allegations of its answer. The testimony, upon the objection of defendant in error, was rejected, and at the close of the evidence, on motion of defendant in error, the court instructed the jury as follows: "The jury is instructed that if you find from the evidence that John R. Mathews was a passenger, being carried on the train of the defendant railway company that was derailed and wrecked near Lincoln, Ne braska, on August 9, 1894, thereby causing the death of said Mathews, and that plaintiff is the administrator of the estate of said Mathews, then you should find for the plaintiff if you find a pecuniary loss from 6, 1902. IN ERROR to the Supreme Court of the State of Nebraska to review a judgment which affirmed a judgment of the District Court of Lancaster County entered upon a verdict for plaintiff in an action to recover damages from a railroad company for the death of a passenger. Affirmed. See same case below, 59 Neb. 689, 82 N. W. 26. The facts are stated in the opinion. Messrs. W. F. Evans and M. A. Low for plaintiff in error. Messrs. Thomas C. Munger, John M. Stewart, and A. E. Harvey for defendant in error. Mr. Justice McKenna delivered the opinion of the court: This action was brought in the district court of Lancaster county, Nebraska, by the defendant in error as the administratrix of the estate of Ernest H. Zernecke, deceased, against the plaintiff in error, for damages, under a statute of the state, for the death of Zernecke, caused by the derailment of the train of plaintiff in error upon which Zernecke was a passenger. The plaintiff alleged negligence in the railroad company and its servants. The an *583 *584 of some express rule or regulation of said road actually brought to his or her notice." Neb. Comp. Laws, 838. swer of the company denied negligence, and alleged that the derailment was caused by some person or persons unknown to the company and not in its employment or un- The court, interpreting the statute, said: der its control, who wilfully, maliciously, "It gives or creates a right of action in and feloniously removed and displaced from favor of the injured passenger, and when it the track certain spikes, nuts, angle-bars, is established that a person is injured while fishplates, bolts, and rails, and otherwise a passenger of the railroad company a contore up and destroyed the track. The com-clusive presumption of negligence arises in pany also alleged care in the maintenance of every case, except where it is disclosed that its track and the management of its train. the injury was one caused by his own crim The petition alleged that the plaintiff in inal negligence or by his violation of some error "was a corporation, duly incorporated rule of the company brought to his actual under the laws of the state of Nebraska," notice. In other words, a conclusive and the admission of the answer was that presumption of negligence arises where the defendant in error, "at all times mentioned case does not fall within the exceptions of in said petition, was a corporation organ- the law and he has his right of action. ized and existing under and by virtue of the laws of the states of Illinois and Iowa, and a domestic corporation of the state of Nebraska." The case was tried before a jury. The evidence of defendant in error (petitioner) was that at the time Zernecke was killed he was being transported as a passenger over the railway of plaintiff in error, and that the train upon which he was riding was thrown from the track, resulting in his death and the death of ten other persons. The plaintiff in error then offered witnesses and depositions to sustain the allegations of its answer. The testimony, upon the objection of defendant in error, was rejected, and at the close of the evidence, on motion of defendant in error, the court instructed the jury as follows: "1. The jury are instructed that if you find from the evidence that Ernest H. Zernecke was a passenger, being carried on the train of the defendant railway company that was derailed and wrecked near Lincoln, Nebraska, on August 9, 1894, thereby causing the death of said Zernecke, and that plaintiff is his administratrix, and she and her children had a pecuniary interest in his life and suffered loss by his death, then you should find for the plaintiff." The jury returned a verdict for defendant in error for $4,500, upon which judgment was entered. The judgment was affirmed by the supreme court of the state (59 Neb. 689, 82 N. W. 26), and the case was then brought here. The assignments of error are based upon the contention that the action of the district court and the decision of the supreme court in affirming the judgment of the district court were based upon § 3 of the act providing for the incorporation of railroad companies, and it is contended that the section contravenes the 14th Amendment to the Constitution of the United States, in that said section deprives plaintiff in error of its property without due process of law. The section is as follows: "Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation Now it is indisputable that if Zernecke had been injured merely, and not killed, he could have recovered against the railway company under said § 3, article 1, of chapter 72, and that thereunder said injuries would have been deemed to have been caused by the wrongful acts, neglect, or default of the said railway company in failing to carry such passenger safely. Hence this case falls within the scope of said chapter 21 and the fact of negligence, or the defendant's wrongful acts or default is established when the evidence discloses the facts specified in said § 3 of chapter 72." In other cases the supreme court has passed upon the statute, the titles of which cases are inserted in the margin.† In McClary v. Sioux City & P. R. Co. (1873), 3 Neb. 44, 19 Am. Rep. 631, railroad companies were held not to be insurers of their passengers. In that case the injury was caused by the upsetting of the train by a gust of wind. The negligence of the company consisted in being behind time. If the train had been on time it would have escaped the tempest. The negligence, it was decided, was too remote as a cause, and the company was held not liable. Subsequently (39 Neb. 803, 58 N. W. 434) railroad companies were held to be insurers of their passengers. The company escaped liability, however, by reason of the gross negligence of the person injured. In Omaha & R. Valley R. Co. v. Chollette, 33 Neb. 143, 49 N. W. 1114, the words of from liability, "where the injury done arose the statute exempting railroad companies from the criminal negligence of the persons injured," were defined to mean "gross negligence," "such negligence as would amount to a flagrant and reckless disregard" by the Chollette v. Omaha & R. Valley R. Co. 26 Neb. 159, 4 L. R. A. 135, 41 N. W. 1106, 33 Neb. 143, 49 N. W. 1114; Missouri P. R. Co. v. Baier, 37 Neb. 235, 55 N. W. 913; Union P. R. Co. v. & Q. R. Co. v. Hague, 48 Neb. 97, 66 N. W. Porter, 38 Neb. 226, 56 N. W. 808; Chicago, B. 1000; Chicago, B. & Q. R. Co. v. Landauer, 39 Neb. S03, 58 N. W. 434; Omaha & R. Valley R. Co. v. Chollette, 41 Neb. 578, 59 N. W. 921; St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448, 62 N. W. 887; Fremont, E. & M. Valley R. Co. R. I. & P. R. Co. v. Young, 58 Neb. 678, 79 N. W. 556; Chicago, B. & Q. R. Co. v. Wolfe (Neb.) 86 N. W. 441, decided March 20, 1901. v. French, 48 Neb. 638, 67 N. W. 472; Chicago, *585 |
