er prohibiting slavery and the latter declaring who shall be citizens, congress, in the act of July 14, 1870, amending the naturalization laws, added the following provision: "That the naturalizations laws are hereby extended to aliens of African nativity and to persons of African descent." 16 Stat. 256, Sec. 7. Upon the revision of the statutes, the revisors, probably inadvertently, as congress did not contemplate a change in the laws in force, omitted the words "white person "-section 2165 of the Revised Statutes being the section conferring the right, reading: "An alien may be admitted to become a citizen," etc. The provision relating to Africans, of the act of 1870, is carried into the Revised Statutes in a separate section, which reads as follows: 66 • The provisions of this title shall apply to aliens of African nativity and to persons of African descent." Section 2169. This section was amended by the "Act to correct errors and to supply omissions in the Revised Statutes of the United States," of February 18, 1875, so as to read: "The provisions of the title shall apply to aliens being free white persons, and to aliens of African nativity and to persons of African descent." Rev. Stat. p. 1435; 18 Stat. 318. And so the statute now stands.

The questions are: First-Is a person of the Mongolian race a white person within the meaning of the statute? Second-Do those provisions exclude all but white persons and persons of African nativity and African descent?

The

Words in a statute, other than technical terms, should be taken in their ordinary sense. words "white persons," as was argued by petitioner's counsel, taken in a strictly literal sense, constitute a very indefinite description of a class of persons, where none can be said to be literally white, and those called white may be found of every shade from the lightest blonde to the most swarthy brunette. But these words, in this country at least, have undoubtedly acquired a wellsettled meaning in common popular speech; and they are constantly used in the sense so acquired in the literature of the country, as well as in common parlance. As ordinarily used everywhere in the United States, one would scarcely fail to understand that the party employing the words "a white person," would intend a person of the Caucasian race.

In speaking of the classifications of races, Webster, in his dictionary, says "But the cominon classification is that of Blumenbach, who makes five. First-The Caucasian or white race, to which belong the greater part of the European nations and those of western Asia. Second-The Mongolian or yellow race, occupying Tartary, China, Japan, etc. Third-The Ethiopian or negro (black) race, occupying all Africa except the north. Fourth-The American or red race, containing the Indians of North and South America, and, Fifth —The Malay or brown race, occupying the islands of the Indian Archipelago," etc. This division was adopted from Buffon, with some change in names, and is founded on the combined characteristics of complexion, hair and skull. Linnæus makes four divisions, founded on the color of the

skin: 1-European, whitish. 2-American, coppery. 3-Asiatic, tawny; and, 4-African, black. Cuvier makes three-Caucasian, Mongol and Negro. Others make many more, but none include the white or Caucasian with the Mongolian or yellow race; and none of these classifications, recognizing color as one of the distinguishing characteristics, includes the Mongolian in the white or whitish race. See "New American Cyclopædia," Title Ethnology. Neither in popular language, in literature, nor in scientific nomenclature do we ordinarily, if ever, find the words "white person used in a sense so comprehensive as to include an individual of the Mongolian race; yet in all color, notwithstanding its indefiniteness as a word of description, is made an important factor in the basis adopted for the distinction and classification of races. I am not aware that the term "white persons as used in the statutes as they have stood from 1802 till the late revision was ever supposed to include a Mongolian. While I find nothing in the history of the country, in common or in scientific usage, or in legislative proceedings to indicate that congress intended to include in the term "white person 99 any other than the individual of the Caucasian race, I do find much in the proceedings of congress to show that it was universally understood in that body in its recent legislation that it excluded Mongolians. At the time of the amendment in 1870, extending the naturalization laws to the African race, Mr. Sumner made repeated and strenuous efforts to strike the word "white" from the naturalization laws, or to accomplish the same object by other language. It was opposed on the sole ground that the effect would be to authorize the admission of Chinese to citizenship. Every senator who spoke upon the subject assumed that they were then excluded by the term "white persons," and that the amendment would admit them; and the amendment was advocated on one hand and opposed on the other upon that single idea. Senator Morton, in the course of the discussion, said: "This amendment involves the whole Chinese problem.

66

The country has just awakened to the question, and to the enormous magnitude of the question, involving a possible immigration of many millions; involving another civilization; involving labor problems that no intellect can solve without study aud without time. Are you now prepared to settle the Chinese problem, thus in advance inviting that immigration?" Cong. Globe, part 6, 1869-70, p. 5122. Senator Sumner replied: Senators undertake to disturb us in our judgment by reminding us of the possibility of large numbers swarming from China, but the answer to all this is very obvious and very simple. If the Chinese come here they will come for citizenship, or merely for labor. If they come for citizenship, then in this desire do they give a pledge of loyalty to our institutions; and where is the peril in such views? They are peaceful and industrious. How can their citizenship be the occasion of solicitude?" Ib. 5155. Many other senators spoke pro and con on the question, this being the point of contest, and these quotations being fair exam

ples of the opinions expressed. Ib. pages 5121 to 5177. It was finally defeated, and the amendment cited, extending the right of naturalization to the African only, was adopted. It is clear from these proceedings that Congress retained the word "white" in the naturalization laws for the sole purpose of excluding the Chinese from the right of naturalization. Again when it was found that the term white persons had been omitted

in the Revised Statutes, it was restored by the act passed "to correct errors and to supply omissions" in the Revised Statutes before cited. Upon reporting this bill, Mr. Poland, chairman of the committee, explained the various amendments correcting errors, and upon the amendment to insert the words, "being free white persons," said: "The original naturalization laws only extended to free 'white' persons * * A few years since (in 1870) upon some bill, Mr. Sumner, of Massachusetts, then in the senate, moved to strike out the word 'white' from the naturalization laws, and it was objected to on the ground that that would authorize the naturalization of that class of Asiatic imigrants that are so plentiful on the Pacific coast. After considerable debate, instead of striking out the word white, it provided that the naturalization laws should extend to Africans and persons of African descent." After explaining

the omission in the Revised Statutes, he adds: "The member of our committee who had this chapter on the naturalization laws to examine as a sub-committee failed to notice the change in the laws or it would have been brought before the House when the revision was adopted." Con gressional Record, Vol. 3, part 2, Ses. 1875, p. 1081. Upon this report the amendment was made as it now stands in the statute. Thus, whatever latudinarian construction might otherwise be given to the term "white persons" it is entirely clear that congress intended by this legislation to exclude Mongolians from the right of naturalization. am, therefore, of the opinion that a native of China, of the Mongolian race, is not a white person within the meaning of the act of congress.

I

The second question is answered in the discussion of the first. The amendment is intended to limit the operation of the provision as it then stood in the Revised Statutes. It would have been more appropriately inserted in section 2165, than where it is found in section 2169. But the purpose is clear. It was certainly intended to have some operation or it would not have been adopted. The purpose undoubtedly was to restore the law to the condition in which it stood before the revision and to exclude Chinese. It was intended to exclude some classes, and as all white aliens and those of the African race are entitled to naturalization under other words, it is difficult to perceive whom it would exclude unless it be the Chinese.

It follows that the petition must be denied and it is so ordered.

WITH the commencement of the second volume of the Monthly Jurist of Bloomington, Ill., a change in the ediitorial department is to be noted. Mr. Orlando W. Aldrich assumes the editorial charge of the paper, formerly held by Judge Tipton and Mr. Reed.

A RAILROAD company which holds itself out to the public as a common carrier of passengers, establishes its route-stations, and advertises its running arrangements, thereby pledges itself to the public to run accordingly. The duty of the conductor is to run the trains according to the public arrangements, and he has no power to change them. A passenger has no right to infer that a conductor has any power, from his general duties as conductor, to change such arrangements, and no reason to suppose that he could bind the railroad by such an agreement.

E. C. Devore and C. A. Beecher, for appellant; W. K. Marshall, for appellee. BIDDLE, C. J., delivered the opinion of the

court:

Action by the appellee, as a passenger, against the appellant, as a common carrier, for not carrying him as per agreement. The complaint avers that the appellant owns and operates a line of railroad, running from Cincinnati, Ohio, through the states of Indiana and Illinois, to St. Louis, in Missouri, and is a common carrier of passengers from Cincinnati to St. Louis, and to and from all intermediate stations on said road, and particularly from Brownstown station, in Jackson county, in the state of Indiana, to Washington, in Daviess county, Indiana, and thence back again, and has so been a common carrier of passengers for ten years last past. That on the 13th day of January, 1875, while said defendant was so a common carrier as aforesaid, plaintiff applied to said defendant at its depot at Brownstown station, in Jackson county, Indiana, for a passage, and to be carried as a passenger, in its cars running on its said railroad, from said station of Brownstown to said station of Washington, in Daviess county, Indiana, and thence back again to said Brownstown station; that said defendant then and there agreed with plaintiff, and undertook to carry him as a passenger in its said cars on its said road from said station of Brownstown, to said station of Washington and back again, for and in consideration of certain hire and reward, to wit: the sum of five dollars, to be then and there paid in advance by said plaintiff, and which said sum of five dollars the plaintiff did then and there pay to defendant for the use and consideration aforesaid, and received from said defendant a ticket, to be shown and exhibited to the conductors and agents of defendants, on the cars running on said railroad, as evidence that the said plaintiff had paid his fare in full for his carriage and passage from said station of Brownstown to said station of Washington and return. The plaintiff thereupon

took passage on defendant's cars as aforesaid, at said station of Brownstown, to wit: on said 13th day of January, 1875, to be carried, and was carried by them as a passenger from said station of Brownstown to said station of Washington, and, again, on the 18th day of January, 1875, re-embarked on board of said defendant's cars at said station of Washington, to be by defendant carried as a passenger back to said ştation of Brownstown; that when said train and cars in which plaintiff had taken passage, as aforesaid, had started from said station of Washington towards said station of Brownstown, the conductor and agent of defendants took up said ticket as aforesaid, and became thereby bound to carry plaintiff to said station, and there allow him to disembark from said cars, and defendant has ever since had possession of the same, so that plaintiff can not file the same, or a copy thereof, herewith; that when said train and cars in which plaintiff had taken passage, as aforesaid, arrived at said station of Brownstown, defendant neglected and refused to stop the same, and allow plaintiff to disembark at said station of Brownstown, but wrongfully and purposely, and without any fault or negligence of plaintiff, and without his consent, and against his will, carried him past said station of Brownstown, and would not stop or allow plaintiff to get off said train and cars, and gave him no opportunity to get off the same until they had carried him to Seymour, another station on said railroad.

To this complaint a demurrer, stating as cause that it did not show facts sufficient to constitute a cause of action, was overruled, and exceptions to the ruling reserved. Issues were joined, trial had, verdict for appellee found, and, over a motion for a new trial and exceptions, a judgment on the verdict rendered.

In favor of the demurrer it is insisted by the appellant.

1. The pleader should have alleged in the complaint, in addition to the averments therein contained, that by the rules and regulations of appellant, governing the running of trains on his said railway, the train of cars which appellee got aboard of at Washington, Indiana, to return upon to Brownstown, was accustomed to stop at the station of Brownstown, and that said station of Brownstown was, by the rules and regulations of appellant, a regular stopping-place for said train; or,

2. That appellant did not furnish other passenger trains, running daily, sufficient to accommodate the travel, and regularly stopping at said station of Brownstown; or,

3. That before and at the time appellee went aboard of the train at said station of Washington, to return to said station of Brownstown, he went with the consent and agreement of an authorized employee of appellant to stop the train at said station of Brownstown; or,

4. That the appellee expressly purchased the ticket for said train, and, at the time, was informed by the agent of the appellant, that the train would stop at the said station of Brownstown.

We think the demurrer to the complaint is well taken. As the contract set forth does not show

that the appellant undertook to carry the appellee upon any particular train or car, its obligation is no greater or more specific, than to carry according to its general public arrangements. It was therefore necessary for the appellee to allege in his complaint, that the train upon which he took passage on return from Washington to Brownstown was one which, by its running arrangements, stopped at Brownstown. It was the duty of the appellee, before he took passage on return from Washington to Brownstown, to ascertain what train stopped at Brownstown by their public running arrangements, unless he could establish a specific contract to be carried otherwise. Having done neither he can not recover. The Pittsburgh, Cincinnati and St. Louis R. W. Co. v. Nuzum, 50 Ind. 141; The Ohio & Mississippi R. W. Co. v. Applewhite, 52 Ind.

540.

The court instructed the jury as follows: "No. 3. The mere fact of taking up the ticket from a passenger on a train which is not accustomed to stop at the station to which the passenger desires to go, and to which station his ticket entitles him to go, creates no obligation on the defendant to stop and put him off at such station, unless you find that defendant's employee, the conductor of the train at the time plaintiff got upon the train, agreed with the plaintiff to let him off at such station. But if you believe from such evidence that such conductor, on receiving plaintiff's ticket, agreed that he would put him off at a given place, and then took him past that station, then the plaintiff is entitled to recover."

This instruction is too general in its terms. It is not competent, we think, for a conductor to agree with an individual passenger to carry him to a given place, and stop at that place to allow him to leave the train, and thus bind the railroad company, unless the place at which he is to stop is a regular station of the train which he is conducting. Such a power can not be implied as within the proper duties of a conductor; nor would it be consistent with public policy. A railroad company that holds itself out to the public as a common carrier of passengers, establishes its route stations, and advertises its running arrangements, thereby pledges itself to the public to run accordingly; and, if it was in the power of the conductor to stop at different stations from those established for the, line, or alter the running arrangement of the road to accommodate a particular passenger, he would thereby greatly incommodate the public generally for the sake of a single passenger. The duty of a conductor is to run the trains according to public arrangements, and he has no power to change them; and a passenger has no right to infer that a conductor has any such power from his general duties as a conductor, and no reason to suppose that he could bind the railroad company by any such agreement. Such an agreement must be distinguished from the special contract set up in the complaint, which, as it averred, was made by the company itself. The instruction is especially erroneous as applicable to the evidence in the case. By the appellee's own testimony it is shown that

after he got upon the train at Washington, on his return to Brownstown, and before the train started, he was told by the conductor that that train did not stop at Brownstown, and he could not stop there. It was also shown on appellee's ticket that it was "good only on trains stopping at stations named." With this evidence before him, the appellee must have known that the conductor had no power to make such an agreement with him as is contemplated by the instruction under consideradiction.

As the case must be reversed on account of the erroneous instruction, and a new trial granted, we do not examine the question as to the sufficiency of the evidence to support the verdict.

The judgment is reversed, at the cost of the appellee, cause remanded for further proceedings, with instructions to sustain the motion for a new trial, and sustain the demurrer to complaint.

1. NORTH CAROLINA EXEMPTION LAW UNCONSTITUTIONAL.-The Act of the Legislature of North Carolina, passed August 22, 1868, exempting personal property and the homestead of a debtor from sale under execution: Held, unconstitutional and void as to debts contracted before its passage.

2. THE REMEDY SUBSISTING IN A STATE when and where a contract is made, and is to be performed, is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void.

In error to the Supreme Court of North Carolina. The facts appear in the opinion.

Mr. Justice SWAYNE delivered the opinion of the

court:

The Constitution of North Carolina, of 1868, took effect on the 24th of April in that year. Sections 1 and 2 of article X, declare that personal property of any resident of the state, of the value of five hundred dollars, to be selected by such resident, shall be exempt from sale under execution or other final process issued for the collection of any debt; and that every homestead and the buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner, or in lieu thereof, at the option of the owner, any lot in a city, town or village, with the buildings used thereon, owned and occupied by any resident of the state, and not exceeding in value one thousand dollars, shall be exempt in like manner from sale for the collection of any debt under final process.

On the 22d of August, 1868, the legislature passed an act which prescribed the mode of laying off the homestead, and setting off the personal property so exempted by the constitution. On the 7th of April, 1869, another act was passed, which repealed the prior act, and prescribed a different mode of doing

what the prior act provided for. This latter act has not been repealed or modified.

Three several judgments were recovered against the defendant in error-one on the 15th of December, 1868, upon a bond dated the 25th of September, 1865; another on the 10th of October, 1868, upon a bond dated February 27, 1866; and the third on the 7th of January, 1868, for a debt due prior to that time. Two of these judgments were docketed, and became liens upon the premises in controversy on the 16th of December, 1868. The other one was docketed and became such lien on the 18th of January, 1869. When the debts were contracted for which the judgments were rendered, the exemption laws in force were the acts of January 1, 1854, and of February 16, 1859. The firstnamed act exempted certain enumerated articles of inconsiderable value, and "such other property as the freeholders appointed for that purpose might deem necessary for the comfort and support of the debtor's family, not exceeding in value fifty dollars at cash valuation." By the act of 1859 the exemption was extended to fifty acres of land in the county or two acres in a town, of not greater value than five hundred dollars.

On the 22nd of January, 1869, the premises in controversy were duly set off to the defendant in error as a homestead. He had no other real estate, and the premises did not exceed a thousand dollars in value. On the 6th of March, 1869, the sheriff, under executions issued on the judgments, sold the premises to the plaintiff in error, and thereafter executed to him a deed in due form. The regularity of the sale is not contested.

The act of August 22, 1868, was then in force. The acts of 1854 and 1859 had been repealed. Wilson v. Sparks, 72 N. C. 211. No point is made upon these acts by the counsel upon either side. We shall, therefore, pass them without further remark.

The plaintiff in error brought this action in the Superior Court of Granville county, to recover possession of the premises so sold and conveyed to him. That court adjudged that the exemption created by the constitution and the act of 1868 protected the property from liability under the judgments, and that the sale and conveyance by the sheriff were, therefore, void. Judgment was given accordingly. The supreme court of the state affirmed the judgment. The plaintiff in error thereupon brought the case here for review. The only federal question presented by the record is, whether the exemption was valid as regards contracts made before the adoption of the constitution of 1868.

The counsel for the plaintiff in error insists upon the negative of this proposition. The counsel upon the other side, frankly conceding several minor points, maintains the affirmative views. Our remarks will be confined to this subject. The Constitution of the United States declares that "no state shall pass any * * law impairing the obligation of contracts." A contract is the agreement of minds, upon a sufficient consideration, that something specified shall be done, or shall not be done. The lexical definition of im

*

pair is "to make worse; to diminish in quantity, value, excellence or strength; to lessen in power; to weaken; to enfeeble; to deteriorate."-Webster's Dict. Obligation is defined to be "the act of obliging or binding: that which obligates; the binding power of a vow, promise, oath or contract," etc.-Id. The word is derived from the Latin word obligatio, tying up; and that from the verb obligo, to bind or tie up; to engage by the ties of a promise or oath, or form of law; and obligo is compounded of the verb ligo, to tie or bind fast, and the preposition ob, which is prefixed to increase its meaning." Blair v. Williams, and Lapsley v. Brashears, 4 Litt. 65.

The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than the means of enforcement. This is the breath of its vital existence. Without it the contract, as such, in the view of the law, ceases to be, and falls into the class of those "imperfect obligations," as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest. The ideas of right and remedy are inseparable. "Want of right and want of remedy are the same thing." 1 Bac. Abr. tit. Actions in General, letter B.

In Von Hoffman v. Quincy, 4 Wall. 552, it was said: "A statute of frauds embracing pre-existing parol contracts not before required to be in writing, would affect their validity. A state declaring that the word ton should, in prior as well as subsequent contracts, be held to mean half or double the weight before prescribed, would affect its Construction. A statute providing that a previous contract of indebtment may be extinguished by a process of bankruptcy, would involve its discharge, and a statute forbidding the sale of any of the debtor's property, under a judgment upon such a contract, would relate to the remedy." It can not be doubted, either upon principle or authority, that each of such laws would violate the obligation of the contract, and the last not less than the first. These propositions seem to us too clear to require discussion. It is also the settled doctrine of this court that the laws which subsist at the time and place of making a contract enter into and form a part of it as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge and enforcement. Von Hoffman v. Quincy, supra; McCracken v. Hayward, 2 How. 612.

In Greene v. Biddle, 8 Wheat. 92, this court said, touching the point here under consideration: "It is no answer that the acts of Kentucky now in question are regulations of the remedy and not of the right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and interests." "One of the tests that a contract has been impaired is that its value has by legislation been diminished. It is not by the Constitution to be impaired at all. This is not a question of degree or

manner or cause, but of encroaching in any respect on its obligation-dispensing with any part of its force." Planters' Bank v. Sharp et al., 6 How. 327. It is to be understood that the encroachment thus denounced must be material. If it be not material, it will be regarded as of no

account.

These rules are axioms in the jurisprudence of this court. We think they rest upon a solid foundation. Do they not cover this case? and are they not decisive of the question before us? We will, however, further examine the subject.

It is the established law of North Carolina that stay laws are void, because they are in conflict with the National Constitution. Jacobs v. Smallwood, 63 N. C. 112; Jones v. Crittenden, 1 Car. Law, 385; Barnes v. Barnes, 8 Jones, 366. This ruling is clearly correct. Such laws change a term of the contract by postponing the time of payment. This impairs its obligation by making it less valuable to the creditor. But it does this solely by operating on the remedy. The contract is not otherwise touched by the offending law. Let us suppose a case. A party recovers two judgments -one against A, the other against B-each for the sum of fifteen hundred dollars upon a promissory note. Each debtor has property worth the amount of the judgment and no more. The legislature thereafter passes a law declaring that all past and future judgments shall be collected in four equal annual installments." At the same time another law is passed which exempts from execution the debtor's property to the amount of fifteen hundred dollars. The court holds the former law void and the latter valid. Is not such a result a legal solecism? Can the two judgments be reconciled? One law postpones the remedy, the other destroys it-except in the contingency that the debtor shall acquire more property-a thing that may not occur, and that can not occur if he die before the acquisition is made. Both laws involve the same principle and rest on the same basis. They must stand or fall together. The concession that the former is invalid cuts away the foundation from under the latter. If a state may stay the remedy for one fixed period, however short, it may for another, however long. And if it may exempt property to the amount here in question, it may do so to any amount. This, as regards the mode of impairment we are considering, would annul the inhibition of the Constitution, and set at naught the salutary restriction it was intended to impose.

The power to tax involves the power to destroy. McCulloch v. Maryland, 4 Wheat. 430. The power to modify at discretion the remedial part of a contract is the same thing.

But it is said that imprisonment for debt may be abolished in all cases, and that the time prescribed by a statute of limitations may be abridged. Imprisonment for debt is a rule of ancient barbarism. Cooper's Justinian, 658; 12 Tables, Tab. 3. It has descended with the stream of time. It is punishment, rather than a remedy. It is right for fraud, but wrong for misfortune. It breaks the spirit of the honest debtor, destroys his credit,