Statement of Facts.

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 that 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. 1569 and section 68 of order No. 1587 are not in contravention of common right or unjust, unequal, partial, or oppressive, in such sense as authorizes us in this proceeding to pronounce them invalid.”

After answering the position taken in behalf of the petitioner, that the ordinances in question had been repealed, the court added: "We have not deemed it necessary to discuss the question in the light of supposed infringement of petitioner's rights under the Constitution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.

Statement of Facts.

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 threefourths 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

Statement of Facts.

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

Argument for Defendant in Error.

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 destruction of the business and property of the Chinese laundrymen in San Francisco-and 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 cause 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 Sawyer, 552, 560; Sparrow v. Strong, 3 Wall, 97, 104; Brown v. Piper, 91 U. S. 37, 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.

Mr. Hall McAllister, Mr. L. H. Van Schaick, and Mr. D. L. Smoot for plaintiffs in error.

Mr. Alfred Clarke and Mr. H. G. Sieberst for defendant in

error.

We claim that the city has power to adopt the section we are examining under article XI, section 11 of the Constitution "to make and enforce all such local police, sanitary and other regulations as are not in conflict with general laws." The police power of the State does extend to the regulation of this business by excluding it from certain limits, as shown by In re

Argument for Defendant in Error.

McClain, 61 Cal. 436; In re Chin Yan, 60 Cal. 78; In re Ah Sing, 59 Cal. 404; The Slaughter-House Cases, 16 Wall. 36, 62, et seq.; Ailstock v. Paige, 77 Va. 386; In re Lester, 77 Va. 663; Commonwealth v. Merriam, 136 Mass. 433; Muller v. Commissioners, 89 N. C. 171; State v. Mayor, 15 Vroom (44 N. J. Law), 114; State v. Fay, 15 Vroom (44 N. J. Law), 474; Commonwealth v. Whelan, 134 Mass. 206; In re Liquor Locations, 13 R. I. 733; State v. Tarver, 11 Lea, 658.

Under our State constitution, the legislature is prohibited by art. IV., sec. 25, sub. 2, from exercising the local police power; but the power which is denied to the legislature is vested by art. XI., sec. 11, in the municipal corporations throughout the State. In re Stewart, 61 Cal. 374; In re Moynier, 65 Cal. 33; In re Soon Hing, March 13, 1884, by Supreme Court in bank, not reported; In re Wolters, 65 Cal. 269; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703.

The police power is indestructible and inalienable, and being (so far as the regulation of local matters) denied to the legislature, it must reside in the municipalities. The sovereign people have located this power in the municipalities, and it is now too late to question its existence. See observations by Taney, C. J., in Ohio Life Ins. Co. v. Debolt, 16 How. 416, 428.

In addition to the cases heretofore cited, we refer to the following as recent illustrations of the extent of the police power: Butchers' Union Co. v, Crescent City Co., 111 U. S. 746; Foster v. Kansas, 112 U. S. 201; Missouri Pacific Railway v. Humes, 115 U. S. 512.

Admitting for the sake of argument that the laundry of petitioner was not a fully developed common-law nuisance, we say the State has power to regulate it, as was shown in Barbier v. Connolly, 113 U. S. 27. The washing of Mr. Barbier was not a nuisance, but it was regulated. See also, In re Delaney, 43 Cal. 478.

It has been held that "the State may construe her own laws." Hall v. De Cuir, 95 U. S. 504, 515. This is what the State has done. And because some other State (Maryland for instance, in Baltimore v. Radecke, 49 Maryland, 217) has taken a different view, it does not follow that the construction by the