3. That the record, a certified copy of which is presented herewith, shows that there is no conflict of evidence, the claimant relying solely upon the ground that the undisputed facts compelled the legal conclusion that there was not an engaging in interstate commerce. 4. That the record shows that Donato was a crossing watchman employed by your petitioner at the grade crossing formed by the intersection of the main line of its railroad with Forrest Street in the Borough of Conshohocken, Pa. This crossing was protected by safety gates, operated by the watchman, who was also provided with lanterns, flags and a signal disc for signalling purposes. The Compensation Referee found that, while acting in the course of his employment in flagging a train over this crossing, Donato was struck by another train and instantly killed; that interstate shipments and trains constantly pass over this crossing, but there was no proof as to the character of the particular train which the decedent was flagging when he was killed. 5. An award of compensation was made by the Referee, which was affirmed by the Compensation Board, whose decree was affirmed by the judgment of the Court of Common Pleas. From this judgment, the defendant appealed to the Supreme Court of Pennsylvania, which dismissed the appeal and affirmed the judgment of the Court of Common Pleas in favor of the claimant. 6. That the questions of law for determination by the Compensation Referee were as follows: (a) Is a watchman employed on an interstate railroad as a grade crossing over which interstate shipments and trains constantly pass, engaged in interstate commerce within the meaning of the Federal law, while performing his duties in flagging trains over the crossing? (b) Since in an action brought under the Workmen's Compensation Act of Pennsylvania, the burden is upon the claimant to prove a case within the Act, was a prima facie case made out by proof that claimant's husband was employed as a crossing watchman by a common carrier by rail and that he was injured while engaging in the commerce conducted by the carrier over the tracks at the crossing? 7. That the claimant proved, by the only person who saw the accident, that the decedent was struck by a train while flagging another train but there was no proof and no finding by the Referee to show the identity of the train which the watchman was flagging. The Referee held that the claimant was entitled to an award of compensation under the Workmen's Compensation Law of Pennsylvania, because the defendant was unable to show that an unidentified and unknown train was of interstate character. 8. The Workmen's Compensation Board in affirming the award of the Referee, said: "We hold, therefore, that this watchman, while in the course of his employment, met his death while flagging the train whose character has been undisclosed by the testimony. We rule that the burden of proving its defense was upon the defendant and sustain the Referee in his finding that this burden has not been met.'' The Court of Common Pleas and the Supreme Court of Pennsylvania held that the burden was upon the defendant to show that the case did not fall within the provisions of the State Compensation Law; and furthermore held that the burden had not been met by proof that the crossing tracks were constantly in use by interstate trains and that the watchman's duties were to protect the crossing tracks from the risk of collision between traffic upon the railway and traffic upon the public highway. 9. That, although there is no finding whatever as to the character of the train which was being flagged over the crossing, the decisions below proceed upon the presumption that an intrastate train was approaching, for the Supreme Court of Pennsylvania expressly holds that had it been an interstate train, the watchman would have been engaged in interstate commerce. 10. If the Supreme Court of Pennsylvania was right in holding that a crossing watchman is engaged in interstate commerce only when flagging an interstate train, then the fundamental question for decision was the character of the train; for the State Statute could only be applicable if it was an intrastate train. In the face of the finding that the character of the train was not disclosed by the testimony, the judgment of the Supreme Court of Pennsylvania has no foundation of fact upon which to rest, and it was error for that Court to base its decision upon a presumption that the train in question was an intrastate train. Your Honorable Court has repeatedly held that a Federal right is denied as the result of finding of fact without evidence to support it, but in this case a finding involving the conclusion of law that Donato was engaged in intrastate commerce is expressly stated by the tribunals below to be based on an utter lack of proof on the subject. 11. That the Workmen's Compensation Act of Pennsylvania creates a special jurisdiction in derogation of the common law, and in this proceeding under that Act, where the jurisdiction was challenged, it was incumbent upon the claimant to prove prima facie, a case within the Act. 12. That the Supreme Court of Pennsylvania erred in holding that the claimant made out a prima facie case by showing, inter alia, that her decedent was employed as a crossing watchman and met with an accident in the State while in the course of his employment in flagging trains over the crossing, for the claimant was not entitled to the benefit of the State law unless she further showed that the commerce in which the decedent and his employer were engaged, was intrastate commerce or at least identified the train sufficiently to enable the defendant to ascertain its character. 13. That the decision of the Supreme Court of Pennsylvania subverts the fundamental theory of the law for its result is, not only to relieve the claimant of the necessity of making essential proof, but to effectually deprive the defendant of the protection of the Act of Congress invoked. For proof of the character of an unknown train is obviously impossible to make. 14. That this decision is not in concord with the decisions of this Honorable Court, which has repeatedly held that, in cases where a Federal right is affected, the question of the burden of proof is not one of mere State procedure, but is a matter of substance, subject to review by your Honorable Court. 15. That upon a question herein involved, the highest Courts of the States of California and of Illinois have reached a different conclusion from the Supreme Court of Pennsylvania, and have held that a crossing watchman on an interstate railroad is engaged in interstate commerce, irrespective of the character of an approaching train, with which he is immediately concerned, as his duties embrace the prevention of collision upon the crossing and thereby tend to the maintenance and the good order of the tracks, which are instrumentalities used by the carrier in the transportation of goods in interstate commerce. 16. That your petitioner is advised that this question has not been passed upon by your Honorable Court and that, in view of the conflict of authority in the State courts, there is created confusion and uncertainty with regard to the application of the Federal Law and doubt concerning the rights and obligations of employers of labor which ought not to exist. 17. That certain other like cases are pending in the Compensation tribunals and courts of the State of Pennsylvania, and it therefore follows that, unless this Court shall correct the errors of the Court below, your petitioner will be deprived of a right, privilege and immunity under the Federal Employers' Liability Act, in this and all similar cases brought hereafter in the State of Pennsylvania. Wherefore your petitioner prays that a writ of certiorari may issue out of and under the seal of this Court, directed to the Supreme Court of Pennsylvania, commanding that Court, to certify the case to this Court for review and determination, as provided in the Act of Congress known as the Judicial Code, or that your petitioner may have such other and further relief in the premises as to this Court may seem appropriate and in conformity with the said Act. And your petitioner will ever pray, etc. AGNEW T. DICE, being duly sworn, says that he is President of Philadelphia and Reading Railway Company, the petitioner named in the foregoing petition, that he has read the same and knows the contents thereof, and that the facts therein stated are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this A. D. 1920. [SEAL] AGNEW T. DICE. day of March, J. V. HARE, Notary Public. My Commission expires March 1, 1923. CERTIORARI FORM X.-PETITION TO SUPREME COURT FOR [Writ granted. 141 U. S. 583.] IN THE SUPREME COURT OF THE UNITED STATES. Ex Parte Lau Ow Bew, Petitioner. TERM, 18-. Petition for Writ of Certiorari, requiring the Circuit Court of Appeals for the Ninth Circuit to certify to the Supreme Court for its review and determination the case of Lau Ow Bew, Appellant, vs. The United States, Respondents. To the Honorable the Supreme Court of the United States: The petition of Lau Ow Bew respectfully shows to this honorable court as follows: I. Your petitioner is a person of the Chinese race, and a natural-born subject of the Emperor of China; but he is now, and for the past seventeen years has been, a resident of the United States of America, and of no other country, having his domicile in the city of Portland, in the state of Oregon; and during all that time he has been a merchant engaged in the wholesale and importing business, as a member of the well-known commercial firm of Hop Chong & Co., in the said city of Portland. II. Your petitioner, on the. 30th day of September, 1890, departed from the United States on a temporary visit to his relatives in China, with the intention of returning as soon as possible, and he did return to the United States on board of the steamship Oceanic, which arrived at the port of San Francisco, in the state of California, on the 11th day of August, 1891. At the time of his departure he procured satisfactory evidence of his status in this country as a merchant, under the regulations of the treasury department of the United States, adopted July 3, 1890, one of which is as follows: "Chinamen who are not laborers, and who may have heretofore resided in the United States, are not prevented by the existing laws or treaty from returning to the United States after visiting China or elsewhere. No certification, or other papers, however, are issued by the department, or by any of its subordinate officers, to show that they are entitled to land in the United States, but it is suggested that such parties should, before leaving the United States, provide themselves with such proofs of identity as may be deemed proper, showing they have been residents of the United States, and that they are not laborers, so that they can present the same to, and be identified by, the collector of customs at the port where they may return.' III. Your petitioner, on his return to the United States, presented said proofs to the collector of the port of San Francisco; but the collector, while acknowledging the sufficiency of the same, and admitting that your petitioner was a merchant domiciled herein, and, therefore, entitled to the protection of the treaty between the United States and China, concluded July 28, 1868, popularly known as the Burlingame Treaty, and the supplemental treaty between the said governments, concluded November 17, 1880, and the act of congress entitled "An Act to execute certain treaty stipulations relating to Chinese," approved May 6, 1882, as amended July 5, 1884, refused to permit your petitioner to land, on the sole ground that he failed and neglected to produce the certificate of the Chinese Government, mentioned in Section 6 of the said act of May 6, 1882, as amended by the said act of July 5, 1884; and the collector based this refusal upon the opinion of this honorable court in the case of Wan Shing vs. United States, No. 1414, October term, 1890, decided May 11, 1891. IV. Your petitioner thereupon, to wit, on August 14, 1891, filed a petition in the Circuit Court of the United States for the Northern District of California for a writ of habeas corpus to obtain his discharge from detention, alleging, inter alia, that he was a merchant domiciled in the United States for seventeen years last past, and that it was claimed by the master of the said steamship that he could not be allowed to land under the provisions of the sixth section of the said Act of May 6, 1882, as amended by the said Act of July 5, 1884. The writ was issued directed to the master of the said steamship, who produced the body of your petitioner before the said court on the 15th day of August, 1891, and made return to the writ that he held the petitioner in his custody "by direction of the customs authorities of the port of San Francisco, California, under the provisions of the Chinese Restriction Act." The United States District Attorney filed an intervention for and on behalf of the United States, and made opposition to the said writ. It was not alleged or pretended in such intervention, on behalf of the United States, that your petitioner was a laborer, or that the refusal of the customs officers at San Francisco to allow him to land, and his consequent detention by the master of the said steamship, were based upon the provisions of the Chinese Exclusion Act of October 1, 1888; but on the contrary, it was averred in said intervention, that your petitioner was lawfully detained by the said master because he was a Chinese person and failed to produce to the collector of customs, or to any other authorized officer, the certificate of identification required by the said Act of 1882 as amended by the said Act of 1884. |