tion; and is also in deference to the right of independent sovereignties to fix the allegiance of those born within their dominions, having regard to the principle of the common law which permits a sovereignty to claim, with certain exceptions, the citizenship of those born within its territory.

It is pointed out by Mr. Justice Gray, delivering the opinion in United States v. Wong Kim Ark, 169 U. S. 649, 686, that the naturalization acts of the United States have been careful to limit admission to citizenship to those "within the limits and under the jurisdiction of the United States."

The right of aliens to acquire citizenship is purely statutory; and the petitioner's child having been born and remained abroad, clearly does not come within' the terms of the statute. She was debarred from entering the United States by the action of the authorized officials, and, never having legally landed, of course could not have dwelt within the United States. Nishimura Ekiu v. United States, 142 U. S. 651.

It is urged that this seems a harsh application of the law, but if the terms of the statute are to be extended to include children of a naturalized citizen who have never dwelt in the United States, such action must come from legislation of Congress and not judicial decision. Congress has made provision. concerning an alien's wife or minor child suffering from contagious disease, when such alien has made a declaration of his intention to become a citizen, and when such disease was contracted on board the ship in which they came, holding them under regulations of the Secretary of the Treasury until it shall be determined whether the disorder will be easily curable, or whether such wife or child can be permitted to land without danger to other persons, requiring that they shall not be deported until such facts are ascertained (32 Stat. 1221, U. S. Comp. Stat. 1901, Supp. of 1903, p. 185). But Congress has not said that an alien child who has never dwelt in the United States, coming to join a naturalized parent, may land when afflicted with a dangerous contagious disease.

As this subject is entirely within Congressional control, the

matter must rest there; it is only for the courts to apply the law as they find it.

It is suggested that the agreed finding of facts contains no stipulation as to the dangerous or contagious quality of trachoma, but the petition shows that the petitioner's daughter was debarred from landing because it was found that she had a dangerous contagious disease, to wit, trachoma. Furthermore, the statute makes the finding of the board of inquiry final, so far as review by the courts is concerned, the only appeal being to certain officers of the department. 32 Stat. 1213; Nishimura Ekiu v. United States, 142 U. S. 651.

Finding no error in the order of the Circuit Court, it is

Affirmed.

WECKER v. NATIONAL ENAMELING AND STAMPING COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 133. Submitted December 14, 1906.-Decided January 7, 1907.

Where the Circuit Court refuses to remand, and on the plaintiff declining to recognize its jurisdiction or proceed, dismisses the case and renders judgment that plaintiff take nothing thereby and defendant go hence without day and recover his costs, the judgment is final, so far as that suit is concerned, and the question of jurisdiction can be certified to this court under 5 of the act of March 3, 1891, 26 Stat. 827. The right of a non-resident defendant, sued in the state court by an employé for damages, to remove the case to the Federal court cannot be defeated by the fraudulent joinder as co-defendant of another employé, resident of plaintiff's State, who has no relation to the plaintiff, rendering him liable for the injuries, and the Circuit Court can determine the question of fraudulent joinder on affidavits annexed to the non-resident defendant's petition for removal to the consideration whereof plaintiff does not object but submits affidavits counter thereto. Alabama Great Southern Railway Co. v. Thompson, 200 U. S. 206, distinguished.

Where the direct issue of fraud is involved, knowledge may be imputed to one wilfully closing his eyes to information within reach.

THE facts are stated in the opinion.

Mr. Edward C. Kehr, with whom Mr. Richard T. Brownrigg and Mr. William L. Mason were on the brief, for plaintiff in error:

In order to justify removal on the ground of improper joinder of the resident defendant, it was necessary for the removal petitioner to both allege and prove that the allegation of joint liability made in the complaint was fraudulently made. There was no evidence even tending to show such fraud. Alabama Gt. Southern v. Thompson, 200 U. S. 206; Louisville Ry. Co. v. Wangelin, 132 U. S. 599, 601; Plymouth &c. Co. v. Amador &c. Co. 118 U. S. 264, 270; Hukill v. Railway Co., 72 Fed. Rep. 745; Warax v. Railway Co., 72 Fed. Rep. 637; Landis v. Felton et al., 73 Fed. Rep. 311; 2 Foster on Federal Procedure, 925, $384.

The affidavits filed by the non-resident defendant in opposition to the motion to remand and which the court in its certificate as to the jurisdictional question says that it took into consideration in deciding that the allegations of joint liability were fraudulent, do not even charge fraud or state any facts from which an inference of fraud may be drawn, or even negative the joint liability made out by the allegations of the petition.

Mr. Charles P. Wise, Mr. George F. McNulty, Mr. James A. Seddon and Mr. Robert A. Holland, Jr., for defendants in error.

MR. JUSTICE DAY delivered the opinion of the court.

This case is certified here from the Circuit Court of the United States for the Eastern District of Missouri under section 5 of the Court of Appeals Act of March 3, 1891 (26 Stat. 827), upon a question of jurisdiction.

VOL. CCIV-12

Conrad Wecker, the plaintiff below, brought his action in the Circuit Court of the city of St. Louis, State of Missouri, against the National Enameling and Stamping Company, Harry Schenck and George Wettengel, undertaking to recover jointly against the National Enameling and Stamping Company, a corporation of the State of New Jersey, and Schenck and Wettengel, residents of the city of St. Louis, State of Missouri. The substance of the complaint is that defendant is a corporation employing the plaintiff in the work of firing, filling, stirring, emptying and attending certain metal pots used in the melting of grease and lubricant matter in the plant of the defendant corporation; that the grease and lubricant matter was delivered by the corporation to the plaintiff in barrels of great weight-about six hundred pounds each-and it was the plaintiff's duty in the course of his employment to hoist the same to the top surface of the furnace structure, into which the pots were set, and then to dump the grease and lubricant matter into the pots.

The negligence charged against the defendant corporation consisted in allowing the pots, which were constantly filled with hot and boiling lubricants, to remain open and exposed, without covering, railing, device or means of any character to protect the plaintiff from accidentally slipping or falling into the same while engaged in the service of the corporation in the performance of his duties, and negligently failing to provide and properly place safe and sufficient hoisting apparatus for the use of the plaintiff in his employment in lifting said masses of grease and lubricant to the top of the furnace, and for failing to give the plaintiff instructions as to the proper manner of performing his duty and thereby unreasonably endangering his safety in said employment. Plaintiff alleges that, by reason of this negligence, while engaged in the performance of his duties on the twelfth of November, 1902, on the top of the furnace, he lost his balance and fell into one of the open, unguarded and unprotected pots containing hot and boiling grease and lubricant, receiving thereby great and painful in

juries. Plaintiff below further charged that Schenck and Wettengel were employed by the corporation and charged by it with the superintendence and oversight of the plaintiff in the performance of his duty and were employed and charged by the corporation with the duty of superintending and properly planning the construction of a furnace, and with the duty of providing for said pots reasonably safe and suitable covering, railing or other device, and with the duty of providing and properly placing reasonably safe and sufficient hoisting apparatus for lifting the masses of grease and lubricant to the top of the furnace, and were further charged by the corporation with the duty of instructing the plaintiff as to the manner of performing his duties, and charges negligence of Schenck and Wettengel in planning and directing the construction of the furnace structure and providing suitable covers or railings as aforesaid, and providing and placing reasonably safe and sufficient hoisting apparatus and in giving instructions as to the manner of performing plaintiff's duties, by reason whereof the plaintiff lost his balance and fell into one of the pots as aforesaid, to his great injury, and the complaint charges the joint negligence of the corporation and the defendants Schenck and Wettengel, and avers that his injuries were the result thereof, and prays judgment for damages jointly against the three defendants.

The defendant company filed its petition for a removal of the cause to the Circuit Court of the United States for the Eastern District of Missouri, which petition contained the usual averments as to the character of the suit and the right of removal and diversity of citizenship between the defendant corporation and the plaintiff, and averred that Schenck, one of the co-defendants, was also a non-resident of the State of Missouri and a citizen of the State of Illinois, and not served with process; also stated that Wettengel was, at the time of the commencement of the suit and since, a citizen of the State of Missouri; averred a separable controversy between it and the plaintiff as to the alleged negligence and as to the assump