Quong Wing v. Kirkendall

130 P. 2, 47 Mont. 16, 1913 Mont. LEXIS 18

• Court: Montana Supreme Court
• Decided: February 10, 1913
• Docket: No. 3,205
• Status: Published

Opinion

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This cause was heretofore before this court. (Quong Wing v. Kirkendall, 39 Mont. 64, 101 Pac. 250.) On writ of error it was removed to the supreme court of the United. States, where the judgment of this court was affirmed. (Quong Wing v. Kirkendall, 223 U. S. 59, 56 L. Ed. 350, 32 Sup. Ct. Rep. 192.) In disposing of the ease upon the pleadings as then drawn, the federal court, however, intimated strongly that, if in its operations section 2776, Revised Codes, applies only to persons of the Chinese race, it would be held invalid as contravening the provisions of the Fourteenth Amendment to the Constitution of the United States.. Upon the return of the remittitur to the district court, counsel for plaintiff amended the complaint to meet the views of the supreme court of the United States, and to bring the case within the rule announced in Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220, 6 Sup. Ct. Rep. 1064. To this amended complaint, a general demurrer was interposed. The trial court overruled the demurrer, and the county attorney, electing to stand upon his pleading, suffered judgment to be entered against the defendant, and appealed.

The controversy now presents a federal question upon the [1] decision of which the judgment of the supreme court of the United States is conclusive. However reluctant we may be to subscribe to the doctrine announced in Yick Wo v. Hopkins, above, the decision in that case is binding upon us. Upon the authority of the former decision of this case by the supreme court of the United States, and the case of Yick Wo v. Hopkins, above, the judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.