turned in England by the subsequent decision in Dawson v. Chamney, 5 Ad. & El. N. R. 164, we think the dictum right and the decision wrong.

Stephen, in his Commentaries, 2 Com. 133, says that an innkeeper is responsible for the goods and chattels brought by any traveler to his inn, in the capacity of guest there, in every case where they are lost, damaged, stolen, or taken by robbery, except where they are stolen by the traveler's own servant or companion, or from his own person, or from a room which he occupied as a mere guest, or entirely through his own gross negligence; and Mr. Chitty, in a note to Blackstone's Commentaries, 1 Com. 430, note 22, declares it to be long-established law, that the innkeeper is bound to restitution, if the guest is robbed in his house by any person whatever, unless it should appear that he was robbed under circumstances like those which, as above seen, constitute admitted exceptions. In the recent case of Mason v. Thompson, 9 Pick. 280, 284 [20 Am. Dec. 471], it has been laid down in Massachusetts that innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property. And in Grinnell v. Cook, 3 Hill, 488 [38 Am. Dec. 663], Mr. Justice Bronson states the rule in the following words: "The innkeeper is bound to receive and entertain travelers, and is answerable for the goods of the guest, although they may be stolen or otherwise lost without any fault on his part. Like a common carrier, he is an insurer of the property, and nothing but the act of God or public enemies will excuse a loss." It thus appears that some courts as well as commentators are, at length, returning to the sound and healthy principle of the common law, which places the liability of innkeepers and carriers on the same ground. And why should there be any distinction? Rigorous as the law in relation to innkeepers may seem," says Sir William Jones, Bailments, 95, 96, "and hard as it may actually be in one or two particular instances, it is founded on the great principle of public utility, to which all private considerations ought to yield; for travelers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are usually none of the best, and who might have frequent opportunity of associating with ruffians or pilferers, while the injured guest could seldom or never obtain legal proof of

such combinations, or even of their negligence, if no actual fraud had been committed by them." Now, these are the very reasons assigned by the law for the extraordinary responsibility imposed on common carriers; and, the reason for the rule being the same in both cases, there is, in principle, no propriety in making a distinction. We think that an innkeeper is bound to keep the property of his guest safe from burglars and robbers without as well as from thieves within his house.

One point further remains to be considered. It appears from the testimony that the bundle, which is claimed to have contained the gold-dust, was not taken to the defendant's inn until several days after the plaintiff became his guest. As, in order to entitle the plaintiff to recover, it is necessary for him to establish his character of guest in the inn of the defendant, so also it is equally necessary that it should appear that his goods were taken there in the capacity of guest: 2 Steph. Com. 133. The liability of the innkeeper results from the relation of guest in which the traveler stands to him, and extends only to those things which properly pertain to him in that relation: Calye's Case, above cited. It does not necessarily follow that the strict responsibility can be imposed on an innkeeper for all property which his guest may choose to bring into the inn, after he has been received infra hospitium; or that the latter may make the former a compulsory depositary of any amount of goods or treasure, which, during his sojourn in the inn, he may desire to keep secure. The innkeeper is bound by law to receive the traveler and his goods, and for a refusal, in case he has sufficient accommodations for him, he is liable not only to an action on the case for the private damage, but to indictment for the public wrong: 3 Bla. Com. 164; 4 Steph. Com. 296, note n. Inns are instituted for passengers and wayfaring men; and the keepers thereof can be held to the strict legal liability only for such goods as are brought into their inns by travelers in the character of guests. It would be too great a responsibility if that liability could be extended so as to cover any conceivable amount of money or gold-dust, which the traveler, after he has become a guest, might be disposed to thrust into the custody of his host, and thus compel him to become the insurer of its safety. We think, in this case, it is a question which the jury should decide, whether the bundle was taken to the inn of the defendant by the plaintiff in his character of guest, in which event the defendant's liability would cover all losses, or whether, after the plaintiff became a guest with the defendant, it was de

posited there in the nature of an ordinary bailment, in which case the defendant would be bound to exercise no more, at the furthest, than ordinary diligence, and would be answerable, certainly, for nothing more than ordinary neglect.

New trial granted, costs to abide the event.

GRANTING COMPULSORY NONSUIT: See French v. Smith, 24 Am. Dec. 616, and note; Allegre v. Maryland Ins. Co., 14 Id. 289; Booe v. Davis, 33 Id. 457; Ewing v. Glidwell, 34 Id. 96; Martin v. Webb, 39 Id. 363, and note; Dain V. Cowing, Id. 585; Cahill v. Kalamazoo Mut. Ins. Co., 43 Id. 457. The action of the court below will not be disturbed and a nonsuit directed to be entered, unless the evidence was such that if certain questions of fact had been submitted to a jury, and the jury had found for the respondents, the verdict would be set aside as contrary to the evidence: Moore v. Murdock, 26 Cal. 525; a party moving for a nonsuit should state in his motion precisely the grounds upon which he relies: People v. Banvard, 27 Id. 474; both citing the principal case.

DECLARATIONS OF AGENT, WHEN ADMISSIBLE AGAINST PRINCIPAL: Stiles v. Western Railroad Co., 41 Am. Dec. 486, and cases collected in note; Whiteford v. Burckmyer, 39 Id. 640. The creation of the agency must, in the first instance, be established by proper evidence, independent of the acts and declarations: Williams v. Williams, 45 Id. 494. The declarations of an agent are not competent evidence against the principal, except when they form a part of the res gesta: Innis v. Steamer Senator, 1 Cal. 461, citing the principal case. In Gerke v. Cal. Steam Nav. Co., 9 Id. 256, the facts of the principal case are given as an illustration of declarations of an agent against the principal not constituting part of the res gestæ.

LIABILITY OF INNKEEPERS: Clute v. Wiggins, 7 Am. Dec. 448, and note; Newson v. Axon, 10 Id. 685; Towson v. Havre de Grace Bank, 14 Id. 254; Mason v. Thompson, 20 Id. 471; Hallenbake v. Fish, 24 Id. 88; Albin v. Presby, 29 Id. 679; Hill v. Owen, 35 Id. 124; Grinnell v. Cook, 38 Id. 663; Dickerson v. Rogers, 40 Id. 642; Kisten v. Hildebrand, 48 Id. 416. The doctrine of the principal case, as regards the liability of innkeepers, is approved in Pinkerton v. Woodward, 33 Cal. 598, 600, 602. The liabilities of a common carrier and of an innkeeper are very similar, both being liable for losses under similar circumstances: Hallenbake v. Fish, supra.

LIABILITY OF COMMON CARRIERS: See Fish v. Chapman, 46 Am. Dec. 393, and cases collected in notes.

PEOPLE EX REL. ATTORNEY GENERAL v. Naglee.

[1 CALIFORNIA, 232.]

STATUTE REQUIRING LICENSE FEE OF FOREIGNERS for the privilege of goldmining, and prohibiting those without such license from working the mines, is not in conflict with the constitution of the United States, or treaties with foreign powers in general, or the treaty of Queretaro in particular.

ALL MEXICANS "ESTABLISHED" IN CALIFORNIA HAVE ELECTED TO BECOME AMERICAN CITIZENS, by treaty of Queretaro, who have not within one

year from exchange of ratifications, on May 30, 1848, declared their intention to continue Mexican citizens.

NEITHER FOREIGNERS, UNLESS THEY HAD BECOME OR WERE BONA FIDE RESIDENTS, nor the attorney general on their behalf, can avail themselves of section 17, article 1, constitution of California; nor then, unless they have property, in the possession, enjoyment, or inheritance of which they have been molested.

LEGISLATURE NOT PROHIBITED FROM ENACTING LICENSE LAWS, by section 13, article 11, constitution of California, declaring that taxation shall be equal and uniform.

INFORMATION in the nature of a quo warranto, instituted by the attorney general against the defendant, who, the complaint alleged, had acted as collector of license fees to foreign miners. The object of the proceeding was to procure the opinion of the court on the constitutionality of the license law, which required foreigners to pay a fee of twenty dollars a month for the privilege of gold-mining, and prohibited all foreigners who had not a license from working the mines. The complaint was demurred to, and judgment was given in favor of the defendant.

S. Heydenfeldt, for the attorney general.

William Smith and E. Randolph, for the defendant.

By Court, BENNETT, J. The legislature, at its last session, passed an act, requiring foreigners, in order to entitle them to the privilege of mining in this state, to procure a license for that purpose, and prohibiting all foreigners, who had not such license, from working the mines.

It will be unnecessary to examine the questions in relation to the authority of the attorney general to institute the suit, and whether this form of proceeding is an appropriate method to test the constitutionality of the statute; inasmuch as we have come to the conclusion, that the judgment of the superior court should be affirmed, irrespective of the correctness of the respondent's positions upon these points.

The points on the part of the appellant, which will be considered, are, that the act of the legislature is in conflict: 1. With the constitution of the United States; 2. With treaties of the United States with foreign nations; 3. With the treaty of Queretaro in particular; and, 4. With the bill of rights and the constitution of California.

1. Does the act in question violate the constitution of the United States? The appellant contends that it is a usurpation of the powers conferred upon congress by that instrument. Before proceeding to an examination of this position, it is

deemed advisable to recur to a few principles and rules of interpretation, which define the limits of the powers conferred upon congress by the constitution, and of those which the states still continue to retain. The general government, though su preme within its constitutional sphere, is yet limited in the objects of its jurisdiction, and in the extent of its authority. So far as the constitution has, either expressly or by necessary and unavoidable implication, conferred upon it exclusive powers, to that extent state rights and state authority are subordinate; but no further than it can point out its authority in the constitution does its jurisdiction extend-over everything beyond, state legislation is supreme. In determining the boundaries of apparently conflicting powers between the states and the general government, the proper question is, not so much what has been, in terms, reserved to the states, as what has been, expressly or by necessary implication, granted by the people to the national government; for each state possesses all the powers of an independent and sovereign nation, except so far as they have been ceded away by the constitution. The federal government is but the creature of the people of the states, and, like an agent appointed for definite and specific purposes, must show an express or necessarily implied authority in the charter of its appointment, to give validity to its acts.

In order, therefore, to maintain the position that a state has not the power to do a given act, which, without a transgression of international law, falls within the scope of the powers of any independent nation, it is necessary to show that such power has been transferred, by the constitution, from the state to the federal government. These principles are so well settled and so universally recognized and admitted, that it is scarcely necessary to cite authorities in support or elucidation of them. But we will refer to a few. They were foreshadowed by the Federalist, No. 32, p. 143, ed. of 1837, even before the adoption of the constitution. It was stated in this, that the state governments would clearly retain all the rights of sovereignty which they had before the adoption of the constitution of the United States, and which were not by that act exclusively delegated to the United States. This exclusive delegation, or rather alienation of state sovereignty, would only exist in three cases: 1. Where the constitution, in express terms, granted an exclusive authority to the Union. 2. Where it granted, in one instance, an authority of the Union, and in another, prohibited the states from exercising the like authority; and, 3. Where it granted an authority to