THE UNITED STATES SUPREME COURT
YICK
WO
v.
HOPKINS, Sheriff, etc.
IN
ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
-----
WO LEE
v.
HOPKINS, Sheriff, etc.
APPEAL FROM THE CIRCUIT COURT OF THE
UNITED STATES
FOR THE DISTRICT OF CALIFORNIA.
Filed May 10, 1886.
COUNSEL
D.L. Smoot and Hall McAllister, for plaintiff in error
and appellant.
H.G. Sieberst, for Hopkins, Sheriff, etc.
[CITE AS: 118 U.S. 356]
These two cases were argued as one, and depend upon
precisely the same state of facts; the first coming
here upon a writ of error to the supreme court of
the state of California, the second on appeal from
the circuit court of the United States for that district.
The plaintiff in error, Yick Wo, on August 24, 1885,
petitioned the supreme court of California for the
writ of habeas corpus, alleging that he was illegally
deprived of his personal liberty by the defendant
as sheriff of the city and county of San Francisco.
The sheriff made return to the writ that he held the
petitioner in custody by virtue of a sentence of the
police judge's court No. 2 of the city and county
of San Francisco, whereby he was found guilty of a
violation of certain ordinances of the board of supervisors
of that county, and adjudged to pay a fine of $10,
and, in default of payment, be imprisoned in the county
jail at the rate of one day for each dollar of fine
until said fine should be satisfied; and a commitment
in consequence of non-payment of said fine.
The ordinances for the violation of which he had
been found guilty are set out as follows:
Order No. 1,569, passed May 26, 1880, prescribing
the kind of buildings in which laundries may be located.
'The people of the city and county of San Francisco
do ordain as follows: 'Section 1. It shall be unlawful,
from and after the passage of this order, for any
person or persons to establish, maintain, or carry
on a laundry, within the corporate limits of the city
and county of San Francisco, without having first
obtained the consent of the board of supervisors,
except the same be located in a building constructed
either of brick or stone.
'Sec. 2. It shall be unlawful for any person to erect,
build, or maintain, or cause to be erected, built,
or maintained, over or upon the roof of any building
now erected, or which may hereafter be erected, within
the limits of said city and county, any scaffolding,
without first obtaining the written permission of
the board of supervisors, which permit shall state
fully for what purpose said scaffolding is to be erected
and used, and such scaffolding shall not be used for
any other purpose than that designated in such permit.
'Sec. 3. Any person who shall violate any of the
provisions of this order shall be deemed guilty of
a mis-demeanor, and upon conviction thereof shall
be punished by a fine of not more than one thousand
dollars, or by imprisonment in the county jail not
more than six months, or by both such fine and imprisonment.'
Order No. 1,587, passed July 28, 1880, the following
section:
'Sec. 68. It shall be unlawful, from and after the
passage of this order, for any person or persons to
establish, maintain, or carry on a laundry within
the corporate limits of the city and county of San
Francisco without having first obtained the consent
of the board of supervisors, except the same be located
in a building constructed either of brick or stone'
The following facts are also admitted on the record:
That petitioner is a native of China, and came to
California in 1861, and is still a subject of the
emperor of China; that he has been engaged in the
laundry business in the same premises and building
for 22 years last past; that he had a license from
the board of fire-wardens, dated March 3, 1884, from
which it appeared 'that the above-described premises
have been inspected by the board of fire-wardens,
and upon such inspection said board found all proper
arrangements for carrying on the business; that the
stoves, washing and drying apparatus, and the appliances
for heating smoothing-irons, are in good condition,
and that their use is not dangerous to the surrounding
property from fire, and that all proper precautions
have been taken to comply with the provisions of order
No. 1,617, defining 'the fire limits of the city and
county of San Francisco, and making regulations concerning
the erection and use of buildings in said city and
county,' and of order No. 1,670, 'prohibiting the
kindling, maintenance, and use of open fires in houses;'
that he had a certificate from the health officer
that the same premises had been inspected by him,
and that he found that they were properly and sufficiently
drained, and that all proper arrangements for carrying
on the business of a laundry, without injury to the
sanitary condition of the neighborhood, had been complied
with; that the city license of the petitioner was
in force, and expired October 1, 1885; and that the
petitioner applied to the board of supervisors, June
1, 1885, for consent of said board to maintain and
carry on his laundry, but that said board, on July
1, 1885, refused said consent.'
It is also admitted to be true, as alleged in the
petition, that on February 24, 1880, 'there were about
320 laundries in the city and county of San Francisco,
of which about 240 were owned and conduct-ed by subjects
of China, and of the whole number, viz., 320, about
310 were constructed of wood, the same material that
constitutes ninetenths of the houses in the city of
San Francisco. The capital thus invested by the subjects
of China was not less than two hundred thousand dollars,
and they paid annually for rent, license, taxes, gas,
and water about one hundred and eighty thousand dollars.'
It is alleged in the petition that 'your petitioner,
and more than one hundred and fifty of his countrymen,
have been arrested upon the charge of carrying on
business without having such special consent, while
those who are not subjects of China, and who ar conducting
eighty odd laundries under similar condi-tions, are
left unmolested, and free to enjoy the enhanced trade
and profits arising from this hurtful and unfair dis-crimination.
The business of your petitioners, and of those of
his countrymen similarly situated, is greatly impaired,
and in many cases practically ruined, by this system
of oppression to one kind of men, and favoritism to
all others.'
The statement therein contained as to the arrest,
etc., is admitted to be true, with the qualification
only that the 80-odd laundries referred to are in
wooden buildings without scaffolds on the roofs. It
is also admitted 'that petitioner and 200 of his countrymen
similarly situated petitioned the board of super-visors
for per-mission to continue their business in the
various houses which they had been occupying and using
for laundries for more than twenty years, and such
petitions were denied, and all the petitions of those
who were not Chinese, with one exception of Mrs. Mary
Meagles, were granted.'
By section 11 of article 11 of the constitution of
California it is provided that 'any county, city,
town, or township may make and enforce within its
limits all such local, police, sanitary, and other
regulations as are not in conflict with general laws.'
By section 74 of the act of April 19, 1856, usually
known as the 'Consolidation Act,' the board of supervisors
is empowered, among other things, 'to provide by regulation
for the prevention and summary removal of nuisances
to public health, the prevention of contagious diseases;
to prohibit the erection of wooden buildings within
any fixed limits where the streets shall have been
established and graded; * * * to regulate the sale,
storage, and use of gunpowder, or other explosive
or combustible materials and substances, and make
all needful regulations for protection against fire;
to make such regulations concerning the erection and
use of buildings as may be necessary for the safety
of the inhabitants.'
The supreme court of California, in the opinion pronouncing
the judgment in this case, said: 'The board of supervisors,
under the several statutes conferring authority upon
them, has the power to prohibit or regulate all occupations
which are against good morals, contrary to public
order and decency, or dangerous to the public safety.
Clothes-washing is certainly not opposed to good morals,
or subversive of public order or decency, but when
conducted in given localities it may be highly dangerous
to the public safety. Of this fact the supervisors
are made the judges, and, having taken action in the
premises, we do not find that they have prohibited
the establishment of laundries, but they have, as
they well might do, regulated the places at which
they should be established, the character of the buildings
in which they are to be maintained, etc. The process
of washing is not prohibited by thus regulating the
places at which and the surroundings by which it must
be exercised. The order No. 1,569 and section 68 of
order No. 1,587 are not in contravention of common
right, or unjust, unequal, partial, or oppressive,
in such sense as authorizes us in this pro-ceeding
to pronounce them invalid.' After answering the position
taken in behalf of the petitioner, that the ordinances
in question had been repealed, the court adds: 'We
have not deemed it necessary to discuss the question
in the light of supposed infringement of petitioner's
rights under the constitution of the United States,
for the reason that we think the principles upon which
contention on that head can be based have in effect
been set at rest by the cases of Barbier v.Connolly,
113 U. S. 27, and Soon Hing v.Crowley, 113 U. S. 703.'
The writ was accordingly discharged, and the prisoner
remanded.
In the other case, the appellant, Wo Lee, petitioned
for his discharge from an alleged illegal imprisonment,
upon a state of facts, shown upon the record, precisely
similar to that in the Case of Yick Wo. In disposing
of the application, the learned Circuit Judge SAWYER,
in his opinion, (26 Fed. Rep. 471,) after quoting
the ordinance in question, proceeded at length as
follows:
'Thus, in a territory some ten miles wide by fifteen
or more miles long, much of it still occupied as mere
farming and pasturage lands, and much of it unoccupied
sand banks, in many places without a building within
a quarter or half a mile of each other, including
the isolated and almost wholly unoccupied Goat island,
the right to carry on this, when properly guarded,
harmless and necessary occupation, in a wooden building,
is not made to depend upon any prescribed conditions
giving a right to anybody complying with them, but
upon the consent or arbitrary will of the board of
supervisors. In three-fourths of the territory covered
by the ordinance there is no more need of prohibiting
or regulating laundries than if they were located
in any portion of the farming regions of the state.
Hitherto the regulation of laundries has been limited
to the thickly-settled portions of the city. Why this
unnecessary extension of the limits affected, if not
designed to prevent the establishment of laundries,
after a compulsory removal from their present locations,
within practicable reach of the customers or their
proprietors? And the uncontradicted petition shows
that all Chinese applications are, in fact, denied,
and those of Caucasians granted; thus, in fact, making
the discriminations in the administration of the ordinance
which its terms permit. The fact that the right to
give consent is reserved in the ordinance shows that
carrying on the laundry business in wooden buildings
is not deemed of itself necessarily dangerous. It
must be apparent to every well-informed mind that
a fire, properly guarded, for laundry purposes, in
a wooden building, is just as necessary, and no more
dangerous, than a fire for cooking purposes or for
warming a house. If the ordinance under consideration
is valid, then the board of supervisors can pass a
valid ordinance preventing the maintenance, in a wooden
building, of a cooking-stove, heating apparatus, or
a restaurant, within the boundaries of the city and
county of San Francisco, without the consent of that
body, arbitrarily given or withheld, as their prejudices
or other motives may dictate. If it is competent for
the board of supervisors to pass a valid ordinance
prohibiting the inhabitants of San Francisco from
following any ordinary, proper, and necessary calling
within the limits of the city and county, except at
its arbitrary and unregulated discretion and special
consent -- and it can do so if this ordinance is valid
-- then it seems to us that there has been a wide
departure from the principles that have heretofore
been supposed to guard and protect the rights, property, and liberties of the American people. And if, by an
ordinance general in its terms and form, like the
one in question, by reserving an arbitrary discretion in the enacting body to grant or deny permission to
engage in a proper and necessary calling, a discrimination
against any class can be made in its execution, thereby
evading and in effect nullifying the provisions of
the national constitution, then the insertion of provisions
to guard the rights of every class and person in that
instrument was a vain and futile act.
'The effect of the execution of this ordinance in
the manner indicated in the record would seem to be
necessarily to close up the many Chinese laundries
now existing, or compel their owners to pull down
their present buildings and reconstruct of brick or
stone, or to drive them outside the city and county
of San Francisco, to the adjoining counties, beyond
the convenient reach of customers, either of which
results would be little short of absolute confiscation
of the large amount of property shown to be now, and
to have been for a long time, invested in these occupations.
If this would not be depriving such parties of their
property without due process of law, it would be difficult
to say what would effect that prohibited result. The
necessary tendency, if not the specific purpose, of
this ordinance, and of enforcing it in the manner
indicated in the record, is to drive out of business
all the numerous small laundries, especially those
owned by Chinese, and give a monopoly of the business
to the large institutions established and carried
on by means of large associated Caucasian capital.
If the facts appearing on the face of the ordinance,
on the petition and return, and admitted in the case,
and shown by the notorious public and municipal history
of the times, indicate a purpose to drive out the
Chinese laundrymen, and not merely to regulate the
business for the public safety, does it not disclose
a case of violation of the provisions of the fourteenth
amendment to the national constitution, and of the
treaty between the United States and China, in more
than one particular?
If this means prohibition of the occupation, and
a destruction of the business and property, of the
Chinese laundrymen in San Francisco,--as it seems
to us this must be the effect of executing the ordinance,--and
not merely the proper regulation of the business,
then there is discrimination, and a violation of other
highly important rights secured by the fourteenth
amendment and the treaty. That it does mean prohibition,
as to the Chinese, it seems to us must be apparent
to every citizen of San Francisco who has been here
long enough to be familiar with the course of an active
and aggressive branch of public opinion and of public
notorious events. Can a court be blind to what must
be necessarily known to every intelligent person in
the state? See Ah Kow v. Nunan, 5 Sawy. 560; Sparrow
v. Strong, 3 Wall. 104; Brown v. Piper, 91 U. S. 42.'
But, in deference to the decision of the supreme
court of California in the Case of Yick Wo, and contrary
to his own opinion as thus expressed, the circuit
judge discharged the writ and remanded the prisoner.
Justice, Matthews:
In the case of the petitioner, brought here by writ
of error to the supreme court of California, our jurisdiction
is limited to the question whether the plaintiff in
error has been denied a right in violation of the
constitution, laws, or treaties of the United States.
The question whether his imprisonment is illegal,
under the constitution and laws of the state, is not
open to us.
And although that question might have been considered
in the circuit court in the application made to it,
and by this court on appeal from its order, yet judicial
propriety is best consulted by accepting the judgment of the state court upon the points involved
in that inquiry. That, however, does not preclude
this court from putting upon the ordinances of the
supervisors of the county and city of San Francisco
an independent construction; for the determination
of the question whether the proceedings under these
ordinances, and in enforcement of them, are in conflict
with the constitution and laws of the United States,
necessarily involves the meaning of the ordinances,
which, for that purpose, we are required to ascertain
and adjudge.
We are consequently constrained, at the outset, to
differ from the supreme court of California upon the
real meaning of the ordinances in question. That court
considered these ordinances as vesting in the board
of supervisors a not unusual discretion in granting
or withholding their assent to the use of wooden buildings
as laundries, to be exercised in reference to the
circumstances of each case, with a view to the protection
of the public against the dangers of fire. We are
not able to concur in that interpretation of the power
conferred upon the supervisors. There is nothing in
the ordinances which points to such a regulation of
the business of keeping and conducting laundries.
They seem intended to confer, and actually to confer,
not a discretion to be exercised upon a consideration
of the circumstances of each case, but a naked and
arbitrary power to give or withhold consent, not only
as to places, but as to persons; so that, if an applicant
for such consent, being in every way a competent and
qualified person, and having complied with every reasonable
condition demanded by any public interest, should,
failing to obtain the requisite consent of the supervisors
to the prosecution of his business, apply for redress
by the judicial process of mandamus to require the
supervisors to consider and act upon his case, it
would be a sufficient answer for them to say that
the law had conferred upon them authority to withhold
their assent, without reason and without responsibility.
The power given to them is not confided to their discretion
in the legal sense of that term, but is granted to
their mere will. It is purely arbitrary, and acknowledges
neither guidance nor restraint.
This erroneous view of the ordinances in question
led the supreme court of California into the further
error of holding that they were justified by the decisions
of this court in the cases of Barbier v. Connelly,113
U. S. 27, S. C. 5 Sup. Ct. Rep. 357, and Soon Hing
v.Crowley, 113 U. S. 703, S. C. 5 Sup. Ct. Rep. 730.
In both of these cases the ordinance involved was
simply a prohibition to carry on the washing and ironing
of clothes in public laundries and wash houses, within
certain prescribed limits of the city and county of
San Francisco, from 10 o'clock at night until 6 o'clock
in the morning of the following day. This provision
was held to be purely a police regulation, within
the competency of any municipality possessed of the
ordinary powers belonging to such bodies,--a necessary
measure of precaution in a city composed largely of
wooden buildings, like San Francisco, in the application
of which there was no invidious discrimination against
any one within the prescribed limits; all persons
engaged in the same business being treated alike,
and subject to the same restrictions, and entitled
to the same privileges, under similar conditions.
For these reasons that ordinance was adjudged not
to be within the prohibitions of the fourteenth amendment
to the constitution of the United States, which, it
was said in the first case cited, 'undoubtedly intended,
not only that there should be no arbitrary deprivation
of life or liberty, or arbitrary spoliation of property,
but that equal protection and security should be given
to all under like circumstances in the enjoyment of
their personal and civil rights; that all persons
should be equally entitled to pursue their happiness,
and acquire and enjoy property; that they should have
like access to the courts of the country for the protection
of their persons and property, the prevention and
redress of wrongs, and the enforcement of contracts;
that no impediment should be interposed to the pursuits
of any one, except as applied to the same pursuits
by others under like circumstances; that no greater
burdens should be laid upon one than are laid upon
others in the same calling and condition; and that,
in the administration of criminal justice, no different
or higher punishment should be imposed upon one than
such as is prescribed to all for like offenses.
Class legislation, discriminating against some and
favoring others, is prohibited; but legislation which,
in carrying out a public purpose, is limited in its
application, if, within the sphere of its operation,
it affects alike all persons similarly situated, is
not within the amendment.' The ordinance drawn in
question in the present case is of a very different
character. It does not prescribe a rule and conditions,
for the regulation of the use of property for laundry
purposes, to which all similarly situated may conform.
It allows, without restriction, the use for such purposes
of buildings of brick or stone; but, as to wooden
buildings, constitut-ing nearly all those in previous
use, it divides the owners or occupiers into two classes,
not having respect to their personal character and
qualifications for the business, nor the situation
and nature and adaptation of the buildings themselves,
but merely by an arbitrary line, on one side of which
are those who are permitted to pursue their industry
by the mere will and consent of the supervisors, and
on the other those from whom that consent is withheld,
at their mere will and pleasure. And both classes
are alike only in this: that they are tenants at will,
under the supervisors, of their means of living. The
ordinance, therefore, also differs from the not unusual
case where discretion is lodged by law in public officers
or bodies to grant or withhold licenses to keep taverns,
or places for the sale of spirituous liquors, and
the like, when one of the conditions is that the applicant
shall be a fit person for the exercise of the privilege,
because in such cases the fact of fitness is submitted
to the judgment of the officer, and calls for the
exercise of a discretion of a judicial nature.
The rights of the petitioners, as affected by the
proceedings of which they complain, are not less because
they are aliens and subjects of the emperor of China.
By the third article of the treaty between this government
and that of China, concluded November 17, 1880, (22
St. 827), it is stipulated: 'If Chinese laborers,
or Chinese of any other class, now either permanently
or temporarily residing in the territory of the United
States, meet with ill treatment at the hands of any
other persons, the government of the United States
will exert all its powers to devise measures for their
protection, and to secure to them the same rights,
privileges, immunities, and exemptions as may be enjoyed
by the citizens or subjects of the most favored nation,
and to which they are entitled by treaty.' The fourteenth
amendment to the constitution is not confined to the
protection of citizens. It says: 'Nor shall any state
deprive any person of life, liberty, or property without
due process of law; nor deny to any person within
its jurisdiction the equalprotection of the laws.'
These provisions are universal in their application,
to all persons within the territorial jurisdiction,
without regard to any differences of race, of color,
or of nationality; and the equal protection of the
laws is a pledge of the protection of equal laws.
It is accordingly enacted by section 1977 of the Revised
Statutes that 'all persons within the jurisdiction
of the United States shall have the same right, in
every state and territory, to make and enforce contracts,
to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.' The questions we have
to consider and decide in these cases, therefore,
are to be treated as involving the rights of every
citizen of the United States equally with those of
the strangers and aliens who now invoke the jurisdiction
of the court.
It is contended on the part of the petitioners that
the ordinances for violations of which they are severally
sentenced to imprisonment are void on their face,
as being within the prohibitions of the fourteenth
amend-ment, and, in the alternative, if not so, that
they are void by reason of their administration, operating
unequally, so as to punish in the present petitioners
what is permitted to others as lawful, without any
distinction of circumstances,--an unjust and illegal
discrimination, it is claimed, which, though not made
expressly by the ordinances, is made possible by them.
When we consider the nature and the theory of our
institutions of government, the principles upon which
they are supposed to rest, and review the history
of their development, we are constrained to conclude
that they do not mean to leave room for the play and
action of purely personal and arbitrary power. Sovereignty
itself is, of course, not subject to law, for it is
the author and source of law; but in our system, while
sovereign powers are delegated to the agencies of
government, sovereignty itself remains with the people,
by whom and for whom all government exists and acts. [emphasis added]
And the law is the definition and limitation of power.
It is, indeed, quite true that there must always be
lodged somewhere, and in some person or body, the
authority of final decision; and in many cases of
mere administration, the responsibility is purely
political, no appeal lying except to the ultimate
tribunal of the public judgment, exercised either
in the pressure of opinion, or by means of the suffrage.
But the fundamental rights to life, liberty, and the
pursuit of happiness, considered as individual possessions,
are secured by those maxims of constitutional law
which are the monuments showing the victorious progress
of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in
the famous language of the Massachusetts bill of rights,
the government of the commonwealth 'may be a government
of laws and not of men.' For the very idea that one
man may be compelled to hold his life, or the means
of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails,
as being the essence of slavery itself.
There are many illustrations that might be given
of this truth, which would make manifest that it was
self-evident in the light of our system of jurisprudence.
The case of the political franchise of voting is one.
Though not regarded strictly as a natural right, but
as a privilege merely conceded by society, according
to its will, under certain conditions, nevertheless
it is regarded as a fundamental political
right, because preservative of all rights.
In reference to that right, it was declared by the
supreme judicial court of Massachusetts, in Capen
v. Foster, 12 Pick. 485, 488, in the words of Chief
Justice SHAW, 'that in all cases where the constitution
has conferred a political right or privilege, and
where the constitution has not particularly designated
the manner in which that right is to be exercised,
it is clearly within the just and constitutional limits
of the legislative power to adopt any reasonable and
uniform regulations, in regard to the time and mode
of exercising that right, which are designed to secure
and facilitate the exercise of such right in a prompt,
orderly, and convenient manner;' nevertheless, 'such
a construction would afford no warrant for such an
exercise of legislative power as, under the pretense
and color of regulating, should subvert or injuriously
restrain, the right itself.' It has accordingly been
held generally in the states that whether the particular
provisions of an act of legislation establishing means
for ascertaining the qualifications of those entitled
to vote, and making previous registration in lists
of such, a condition precedent to the exercise of
the right, were or were not reasonable regulations,
and accordingly valid or void, was always open to
inquiry, as a judicial question. See Daggett v. Hudson,
3 N. E. Rep. 538, decided by the supreme court of
Ohio, where many of the cases are collected; Monroe
v. Collins, 17 Ohio St. 666.
The same principle has been more freely extended
to the quasi legislative acts of inferior municipal
bodies, in respect to which it is an ancient jurisdiction
of judicial tribunals to pronounce upon the reasonableness
and consequent validity of their by-laws. In respect
to these it was the doctrine that every by-law must
be reasonable, not inconsistent with the charter of
the corporation, nor with any statute of parliament,
nor with the general principles of the common law
of the land, particularly those having relation to
the liberty of the subject, or the rights of private
property. Dill. Mun. Corp. (3d Ed.) s 319, and cases
cited in notes. Accordingly, in the case of State
v.Cincinnati as-light & Coke Co., 18 Ohio St.
262, 300, an ordinance of the city council purporting
to fix the price to be charged for gas, under an authority
of law giving discretionary power to do so, was held
to be bad, if passed in bad faith, fixing an unreasonable
price, for the fraudulent purpose of compelling the
gas company to submit to an unfair appraisement of
their works. And a similar question, very pertinent
to the one in the present cases, was decided by the
court of appeals of Maryland in the case of City of
Baltimore v. Radecke, 49 Md. 217. In that case the
defendant had erected and used a steam-engine, in
the prosecution of his business as a carpenter and
box-maker in the city of Baltimore, under a permit
from the mayor and city council, which contained a
condition that the engine was 'to be removed after
six months' notice to that effect from the mayor.'
After such notice, and refusal to conform to it, a
suit was instituted to recover the penalty provided
by the ordinance, to restrain the prosecution of which
a bill in equity was filed. The court holding the
opinion that 'there may be a case in which an ordinance,
passed under grants of power like those we have cited,
is so clearly unreasonable, so arbitrary, oppressive,
or partial, as to raise the presumption that the legislature
never intended to confer the power to pass it, and
to justify the courts in interfering and setting it
aside as a plain abuse of authority,' it proceeds
to speak, with regard to the ordinance in question,
in relation to the use of steam-engines, as follows:
'It does not profess to prescribe regulations for
their construction, location, or use; nor require
such precautions and safeguards to be provided by
those who own and use them as are best calculated
to render them less dangerous to life and property;
nor does it restrain their use in box factories and
other similar establishments within certain defined
limits; not in any other way attempt to promote their
safety and security without destroying their usefulness.
But it commits to the unrestrained will of a single
public officer the power to notify every person who
now employs a steamengine in the prosecution of any
business in the city of Baltimore to cease to do so,
and, by providing compulsory fines for every day's
disobedience of such notice and order of removal,
renders his power over the use of steam in that city
practically absolute, so that he may prohibit its
use altogether. But if he should not choose to do
this, but only to act in particular cases, there is
nothing in the ordinance to guide or control his action.
It lays down no rules by which its impartial execution
can be secured, or partiality and oppression prevented.
It is clear that giving and enforcing these notices
may, and quite likely will, bring ruin to the business
of those against whom they are directed, while others,
from whom they are withheld, may be actually benefited
by what is thus done to their neighbors; and, when
we remember that this action of non-action may proceed
from enmity or prejudice, from partisan zeal or animosity,
from favoritism and other improper influences and
motives easy of concealment, and difficult to be detected
and exposed, it becomes unnecessary to suggest or
comment upon the injustice capable of being wrought
under cover of such a power, for that becomes apparent
to every one who gives to the subject a moment's consideration.
In fact, an ordinance which clothes a single individual
with such power hardly falls within the domain of
law, and we are constrained to pronounce it inoperative
and void.' This conclusion, and the reasoning on which
it is based, are deductions from the face of the ordinance,
as to its necessary pendency and ultimate actual operation.
In the present cases, we are not obliged to reason
from the probable to the actual, and pass upon the
validity of the ordinances complained of, as tried
merely by the opportunities which their terms afford,
of unequal and unjust discrimination in their administration;
for the cases present the ordinances in actual operation,
and the facts shown establish an administration directed
so exclusively against a particular class of persons
as to warrant and require the conclusion that, whatever
may have been the intent of the ordinances as adopted,
they are applied by the public authorities charged
with their administration, and thus representing the
state itself, with a mind so unequal and oppressive
as to amount to a practical denial by the state of
that equal protection of the laws which is secured
to the petitioners, as to all other persons, by the
broad and benign provisions of the fourteenth amendment
to the constitution of the United States. Though the
law itself be fair on its face, and impartial in appearance,
yet, if it is applied and administered by public authority
with an evil eye and an unequal hand, so as practically
to make unjust and illegal dis-criminations between
persons in similar circumstances, material to their
rights, the denial of equal justice is still within
the prohibition of the constitution. This principle
of interpretation has been sanctioned by this court
in Henderson v.Mayor of New York, 92 U. S. 259; Chy
Luny v.Freeman, 92 U. S. 275;Ex parte Virginia, 100
U. S. 339; Neal v.Delaware, 103 U.S. 370; and Soon
Hing v.Crowley, 113 U. S. 703.
The present cases, as shown by the facts disclosed
in the record, are within this class. It appears that
both petitioners have complied with every requisite
deemed by the law, or by the public officers charged
with its administration, necessary for the protection
of neighboring property from fire, or as a precaution
against injury to the public health. No reason whatever,
except the will of the supervisors, is assigned why
they should not be permitted to carry on, in the accustomed
manner, their harmless and useful occupation, on which
they depend for alivelihood; and while this consent
of the supervisors is withheld from them, and from
200 others who have also petitioned, all of whom happen
to be Chinese subjects, 80 others, not Chinese subjects,
are permitted to carry on the same business under
similar conditions. The fact of this discrimination
is admitted. No reason for it is shown, and the conclusion
cannot be resisted that no reason for it exists except
hostility to the race and nationality to which the
petitioners belong, and which, in the eye of the law,
is not justified. The discrimination is therefore
illegal, and the public administration which enforces
it is a denial of the equal protection of the laws,
and a violation of the fourteenth amendment of the
constitution. The imprisonment of the petitioners
is therefore illegal, and they must be discharged.
To this end the judgment of the supreme court of California
in the Case of Yick Wo, and that of the circuit court
of the United States for the district of California
in the Case of Wo Lee, are severally reversed, and
the cases remanded, each to the proper court, with
directions to discharge the petitioners from custody
and imprisonment.
|