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. 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.
