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Invalidity of the 'queue ordinance' of the city and county of San Francisco Ho, Ah Kow 1879

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 T'Eai'B
INVALIDITY
a
QUEUE   ORDINANCE
JJ
CITY AND COUNTY OP SAN FRANCISCO..
_ V I 1
T-EaiB
INVALIDITY
OF  THE
"QUEUE   ORDINANCE
j)
OF   THE
CITY AND COUNTY OF SAN FEANCISCO.
©PINION
OF
®It# dpnjuit afflurt of the United
For the District of California,
HO AH KOW vs. MATTHEW NUNAN,
DELIVERED  JULY   7th,   1879.
Printed from a Revised Copy.
SAN   FEANCISCO:
3. L. EICE & CO., LAW PRINTEES AND PUBLISHERS,
511 Montgomery Street.
1879.
Wm
\ic&S.   '?6«
mmmsSjSljSmmm  She fljirorit <$jrart of the United States,
fo/- /#£ District of California.
HO AH KOW vs. MATTHEW NUNAN.
1. The Board of Supervisors of the city and county of San Francisco, the
body in which the legislative power of the city and county is vested, is
limited in its authority by the act which consolidated the government
of the city and .county, generally known as the Consolidation Act. It
can do nothing unless warrant be found for it there, or in a subsequent statute of the State.
2. The power of the Board to determine the fines, forfeitures and penalties
which may be incurred, is limited to two classes of cases: lst, breaches
of regulations established by itself; and, 2d, violations of provisions
of the consolidation act, where no penalty is provided by law. It can
impose no penalty in any other case; and when a penalty other than
that of fine or forfeiture is imposed, it must, by the terms of the act>
»     be in the form of imprisonment.
3. The general supervision of all matters appertaining to the sanitary con
dition of the county jail in San Francisco is confided by the act of
April 4th, 1870, to the Board of Health of the city and county; and
only in exceptional cases would the preservation of the health of the
institution require the cutting of the hair of any of its inmates within
an inch of his scalp.
4. Accordingly, where an ordinance of the city and county of San Fran
cisco, passed on the 14th ef June, 1876, declared that every male
person imprisoned in the county jail, under the judgment of any
Court having jurisdiction in criminal cases in the city and county,
should immediatelv upon his arrival at the jail, have the hair o4 his
head '' cut or clipped to an uniform length of one inch from the scalp
thereof,'' and made it the duty of the Sheriff to have this provision enforced, it was Held, that the ordinance was invalid, being in excess of
the authority of the Board of Supervisors, whether the measure be
considered as an additional punishment to that imposed by the Court
upon conviction under a State law, or as a sanitary regulation; and
constituted no justification to the Sheriff acting under it.
5. The   ordinance being directed against   the   Chinese   only   imposing
upon them a degrading and cruel punishment, is also subject to the
J 4 OPINION.
further objection, that it is hostile and discriminating legislation
against a class forbidden by that clause of the Fourteenth
Amendment to the Constitution, which declares that no State " shall
deny to any person within its jurisdiction the equal protection of the
laws." This inhibition upon the State applies to all the instrumen-
"talities and agencies employed in the administration of its government;
to its executive, legislative and judicial departments; and to the
subordinate legislative bodies of its counties and cities.
6. The equality of protection thus assured to every one whilst within the
United States, implies not only that the Courts of the country shall be
open to him on the same terms as to all others for the security of his
person or property, the prevention or redress of wrongs, and the
enforcement of contracts, but that no charges or burdens shall be laid
upon him which are not equally borne by others, and that in the administration of criminal justice, he shall suffer for his offenses no greater
or different punishment.
7. The legislation of Congress carrying out the provisions of the Fourteenth
Amendment in accordance with these views citea.      ♦
8. While statements of Supervisors in debate on the passage of  an  ordi-
* nance cannot be resorted to for the purpose of explaining the meaning of
the terms used, they can be resorted to for the purpose of ascertaining
the general object of the legislation proposed, and the mischiefs sought
to be remedied.
Mr. Justice Field delivered the opinion of the Court.
The plaintiff is a subject of the Emperor of China, and
the present action is brought to recover • damages for his
alleged maltreatment by the defendant, a citizen of the State
of California and the Sheriff of the city and county of San
Francisco. The maltreatment consisted in having wantonly
and maliciously cut off the queue of the plaintiff, a queue
being worn by all Chinamen, and its deprivation being regarded by them as degrading and as entailing future suffering.
It appears that in April, 1876, the Legislature of Cali-
fornra passed, an act "concerning lodging-houses and sleeping-apartments -within the limits of incorporated cities," declaring, among other things', that any person found sleeping
or lodging in a room or an apartment containing less than
five hundred cubic feet of space in the clear for each person
occupying it, should be deemed guilty of a misdemeanor, and
on conviction thereof be punished by a fine of not less than OPINION. 5
ten or more than fifty dollars, or imprisonment' in the
county jail, or by both such fine and imprisonment."* Under
this act the plaintiff, in April, 1878, was convicted and
sentenced to pay a fine of ten dollars, or in default of such
payment to be imprisoned five days in the county jail. Failing to pay the fine, he was imprisoned. The defendant, as
Sheriff of the city and county, had charge of the jail, and
during the imprisonment of the plaintiff cut off his queue, as
alleged. The complaint avers, that it is the custom of
Chinamen to shave the hair from the front of the head and
to wear the remainder of it braided into a "queue; that the
deprivation of the queue is regarded by them as a mark of
disgrace, and is attended, according to their religious faith,
with misfortune and suffering after death; that the defendant
knew of this custom and religious faith of the Chinese, and
knew also that the plaintiff venerated the custom and held
the faith; yet, in disregard of his rights, inflicted the injury
complained of; and that the plaintiff has, in consequence of
it, suffered great mental anguish, been disgraced in the eyes
of his friends and relatives, and ostracised from association
with his countrymen; and that hence he has been damaged
to the amount of $10,000.
Two defenses to the action are set up by the defendant;
the second one being a justification of his conduct under an
ordinance of the city and county of San Francisco. It is
upon the sufficiency of the latter defense that the case is
before us. The ordinance referred to was passed on the
14th of June, 1876, and it declares that every male person
imprisoned in the county jail, under the judgment of any
Court having jurisdiction in criminal cases in the city and
county, shall immediately upon his arrival at the jail hftve
the hair of his head " cut or clipped to an uniform length of
one inch from the scalp thereof," and it is made the duty of
the Sheriff to have this provision enforced. Under this
ordinance the defendant cut off the queue of the plaintiff.
The validity of this ordinance is denied by the plaintiff on
two grounds:   1st, that it exceeds the authority of the Board
* Session Laws of 1875-6, p, 759. 6
OPINION.
of Supervisors, the body in which the legislative power of
the city and county is vested; and, 2d, that it is special legislation imposing a degrading and cruel punishment upon a
class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the
equal protection of the laws. We are of opinion that both
these positions are well taken.
The Board of Supervisors is limited in its authority by the
act consolidating the government of the city and county.
' It can do nothing unless warrant be found for it there, or m
a subsequent statute of the State.    As with all other municipal bodies, its charter—here the Consolidation Act—is the
source and measure of its powers.  In looking at this charter,
we see that "the powers of  the  Board, and the  subjects
upon which they are to operate, are all specified.    The Board
has no general powers, and its special power to determine
the fines, forfeitures and penalties which may be incurred,
is limited to two classes of  cases:   lst, breaches of regulations established by itself; and 2d, violations of provisions
of the consolidation act, where no penalty is provided by
law.    It can impose no penalty in any other case; and when
a penalty other than that of fine or forfeiture is imposed, it
must, by the terms of the act, be in the form of imprisonment.     It can  take  no other form.     "No penalty to be
imposed," is the language used,  "shall exceed the amount
of  one thousand dollars, or six months imprisonment,  or
both."   The mode in which a penalty can be inflicted, and
the extent of it, are thus limited in defining the power of the
Board.   In their place nothing else can be substituted.    No
one, for example, would pretend that the Board could, for
an*? breach of a municipal regulation or any violation of the
consolidation act, declare that a man should be deprived of
his right to vote, or to testify, or to sit on a jury, or that he
should be punished with stripes, or be ducked in a pond, or
be paraded through the streets, or be seated in a pillory, or
have his ears cropped, or his head shaved.
The cutting off the hair of every male person within an
inch of his scalp, on his arrival at the jail, was not intended OPINION. 7
and cannot be maintained as a measure of discipline or as a
sanitary regulation. The act by itself has no tendency to
promote discipline, and can only be a measure of health in
exceptional cases. Had the ordinance contemplated a
mere sanitary regulation, it would have been limited to
such ca^cs and made applicable to females as well as
to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the
hair which is practiced upon inmates of the State Penitentiary, like dressing them in striped clothing, is partly to
distinguish them from others, and thus prevent their escape,
and facilitate their recapture. They are measures of
precaution, as well as parts of a general system of treatment
prescribed by the Directors of the Penitentiary under the
authority of the State, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or
would be tolerated with respect to persons confined in a
county jail for simple misdemeanors, most of which are not
of a very grave character. For the discipline- or detention
of the plaintiff in this case, who had the option of • paying
a fine of ten dollars, or of being imprisoned for five days,
no such clipping of the hair was required. It was done to
add to the severity of his punishment.
But even if the proceeding could be regarded as a measure
of discipline, or as a sanitary regulation, the conclusion
would not help the defendant; for the Board of Supervisors
had no authority to prescribe the discipline to which persons
convicted under the laws of the State should be subjected,
or to determine what special sanitary regulations should be
enforced with respect to their persons. That is a matter
which the Legislature had not seen fit to intrust to the wisdom and judgment of that body. It is to the Board of
Health of the city and county that a general supervision of
all matters appertaining to the sanitary condition of the county jail is confided; and only in exceptional cases would the
preservation of the health of the institution require the cutting
of the hair of any%f its inmates within an inch of his scalp.*
* Act of April 4, 1878.    Session Laws of 1869-70, p. 717. 8 OPINION.
The claim, however, put forth that the measure was prescribed as one of health, is notoriously a mere pretense. A
treatment to which disgrace is attached, and which is not
adopted as a means of security against the escape of the
prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to
that fixed by the sentence. If adopted in consequence of the
sentence, it is punishment in addition to that imposed by the
Court; if adopted without regard to the sentence, it is
wanton cruelty.
In the present case, the plaintiff was not convicted of any
breach of a municipal regulation, nor of violating any provision of the consolidation act. The punishment which the
Supervisors undertook to add to the fine imposed by the
Court was without semblance of authority. The Legislature
had not conferred upon them the right to change or add to
the punishments which it deemed sufficient for offenses; nor
had it bestowed upon them the right to impose in any case
a punishment of the character inflicted in this case. They
could no more direct that the queue of the plaintiff should
be cut off than that the punishments mentioned should be
inflicted. Nor could they order the hair of any one, Mongolian
or other person, to be clipped within an inch of his scalp.
That measure was beyond their power.
The second objection to the ordinance in question is
equally conclusive. It is special legislation, on the part of
the Supervisors, against a class of persons, who, under the
constitution and laws of the United States, are entitled to
the equal protection of the laws. The ordinance was intended only for the Chinese in San Francisco. This was
avowed by the Supervisors on*-*rts passage, and was so understood by every one. The ordinance is known in the community as the "Queue Ordinance," being so designated
from its purpose to reach the queues of the Chinese, and
it is not enforced against any other persons. The reason advanced for its adoption, and now urged for its continuance is, that only the dread of theTtbss of his queue
will induce a Chinaman to pay his fine.    That is to say; in OPINION. 9
order to enforce the payment of a fine imposed upon him it
is necessary that torture should be superadded to imprisonment. Then, it is said, the Chinaman will not accept the
alternative, which the law allows, of working out his fine by
his imprisonment, and the State or county will be saved the
expense of keeping him during the imprisonment. Probably
the bastinado, or the knout, or the thumbscrew, or the rack,
would accomplish the same end; and no doubt the Chinaman
would prefer either of these modes of torture to that which
entails upon him disgrace among his countrymen and carries
with it the constant dread of misfortune and suffering after
death. It is not creditable to the humanity and civilization
of our i**|ople, much, less to their Christianity, that an
ordinancwof this character was possible.
The class character of this legislation is none the less
manifest  because of the  general terms in which it is expressed.    The statements of Supervisors in debate on the
passage of the ordinance, cannot, it is true,  be resorted to
for the purpose of explaining the meaning of the terms used;
but they can be resorted to for the purpose of ascertaining
the general object of the legislation proposed, and the mischiefs sought to be remedied.    Besides, we cannot shut our
eyes to matters of public notoriety and general cognizance.
When we take our seats  on the bench we are not struck
with blindness, and forbidden to know as judges what we
see as men; and where an ordinance, though general in its
terms, only operates upon a special race, sect .or class, it
being universally understood that it is to be enforced only
against that race, sect or class, we may justly conclude that
it was the intention of the body adopting it that it should
only have such operation, and treat it accordingly.    We may
take notice of the limitation given to the general terms of
an ordinance by its practical construction as a fact in its
history, as we do in some cases that a law has practically
become obsolete.    If this were not so the most, important
provisions of the Constitution, intended for the security of
personal rights, wffuld, by the general terms of an enactment, often be evaded and practically annulled.    (Brown vs. 10 OPINION.
Piper, 1 Otto., 42; Ohio Loan and Trust Co. vs. DeboU,
16 How. 435.) The complaint in this case shows that
the ordinance acts with special severity upon Chinese prisoners, inflicting upon them suffering altogether disproportionate
to what would be endured by other prisoners if enforced
against them. ' Upon the Chinese'prisoners its enforcement
operates as "a cruel and unusual punishment."
Many illustrations might be given where ordinances,
general in their terms, would operate only upon a special
class, or upon a class, with exceptional severity, and
thus incur the odium and be subject to the legal objection of
intended hostile legislation against them. We have, for instance, in our community a large number of Jews. They
are a highly intellectual race, and are generally o Dedient to
the laws of the country. But, as is well known, they have
peculiar opinions with respect to the use of certain articles of
food, which they cannot be forced to disregard without extreme pain and suffering. They look, for example, upon the
eating of pork with loathing. It is an offense against their
religion, and is associated in their minds with uncleanness
and impurity. Now, if they should, in some quarter of the
city, overcrowd their dwellings, and thus become amenable,
like the Chinese, to the act concerning lodging-houses and
sleeping-apartments, an ordinance of the Supervisors requiring that all prisoners confined in the county jail should be
fed on pork, would be seen by every one to be leveled at
them; and, notwithstanding its general terms, would be regarded as a special law in its purpose and operation.
During various periods of English history, legislation,
general in its character, has often been enacted with the
avowed purpose of imposing special burdens and restrictions
upon Catholics; but that legislation has since been regarded
as not less odious and obnoxious to animadversion than if
the persons at whom it was aimed had been particularly
designated.
But, in our country, hostile and discriminating legislation
by a State against persons of any class, se%t, creed or nation,
in whatever form it may be expressed, is forbidden by the OPINION, 11
fourteenth amendment of the Constitution. That ,amend-»
ment in its first section declares who are citizens of the
United States, and then enacts that no State shall make or
enforce any law which shall abridge their privileges and immunities. It further declares that no State shall deprive any
person (dropping the distinctive term citizen) of life, liberty,
or property, without due process of law, nor deny to any.
person the equal protection of the laws. This inhibition
upon the State applies to all the instrumentalities and
agencies employed in the administration of its government;
to its executive, legislative and judicial departments; and to
the subordinate legislative bodies of counties and cities.
And the equality of protection thus assured to every one
whilst wrfchin the United States, from whatever country he
may have come, or of whatever race or color he may be, "implies not only that the Courts of the country shall be open
to him on the same terms as to all others for the security of
his person or property, the prevention or redress of wrongs,
and the enforcement of contracts; but that no charges or
burdens shall be laid upon him which are not equally borne
by others, and that in the administration of criminal justice
he shall suffer for his offenses no greater or different punishment.
Since the adoption of the fourteenth amendment, Congress
has legislated for the purpose of carrying out its provisions
in accordance with these views. The Revised Statutes re-
enacting provisions of law passed in 1870, declare 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." (Sec. 1977.) They also declare, that " every
person who, under color of any statute, ordinance, regula-A
tion, custom or usage, of any State or Territory, subjects, or
causes to be subjected,  any citizen of the United States, or
J 12 OPINION.
other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the
constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress."    (Sec. 1979.)
It is certainly something in which a citizen of the United
States may feel a generous pride that the government of his
country extends protection to all persons within its jurisdiction; and that every blow aimed at any of thero. however
humble, come from what quarter it may, is "caught upon
the broad shield of our blessed Constitution and our equal
laws."*
We are aware of the general feeling—amountinfltto positive hostility—prevailing in California against the Chinese,
which would prevent their further immigration hither, and
expel from the State those already here. Their dissimilarity
in physical characteristics, in language, manners, and religion would seem, from past experience, to prevent the possibility of their assimilation with our people. And thoughtful persons, looking at the millions which crowd the opposite
shores of the Pacific, and the possibility at no distant day
of their pouring over in vast hordes among us, giving rise to-
fierce antagonisms of race, hope that some way may be devised to prevent their further immigration. We feel the
force and importance of these considerations; but the remedy
for the apprehended evil is to be sought from the general
government, where, except in certain special cases, all power
over the subject lies. To that government belong exclusively
the treaty-making power, and the power to regulate commerce with foreign nations, which includes intercourse as
well as traffic, and, with the exceptions presently mentioned,
the power to prescribe the conditions of immigration or
importation of persons. The State in these particulars,
with those exceptions, is powerless, and nothing is
gained by the attempted assertion of a control which can
fnever be admitted. The State may exclude from its limits
paupers and convicts of other countries, persons incurably
* Judge Black's argument in the Fossat case, 2 Wallace, p. 703. OPINION. 13
diseased, and others likely to become a burden upon its
resources. It may perhaps also exclude persons whose
presence would be dangerous to its established institutions.
But there its power ends. Whatever is done by way of exclusion beyond this must come from the general government.
That government alone can determine what aliens shall be
permitted to land within the United States, aud upon what
conditions they shall be permitted to remain; whether they
shall be restricted in business transactions to such as appertain to foreign commerce, as is practically the case with our
people in China, or whether they shall be allowed to engage
in all pursuits equally with citizens. For restrictions necessary or desirable in these matters, the appeal must be made
to the general government; and it is not believed that the
appeal will ultimately be disregarded. Be that as it may,
nothing can be accomplished in that direction by hostile and
spiteful legislation on the part of the State, or of its municipal bodies, like the ordinance in question—legislation
which is unworthy of a brave and manlv people. Against
such legislation it will always be the duty of the judiciary
to declare and enforce the paramount law of the nation.
The plaintiff must have judgment on the demurrer to the
defendant's plea of justification; and it is so ordered.
FIELD,
Presiding Justice.
SAWYER,
Circuit Judge.
San Francisco, July 7th, 1879.
Note.—In re Ah Fong, reported in 3d Sawyer, the Circuit Court of the
United States, referring to the police power of the State, under which it was
claimed that the State could exclude certain classes of persons from its limits, said:
" It is undoubtedly true, that the police power of the State extends to all
matters relating to the internal government of the State, and the administration of its laws, which have not been surrendered to the general
Government; and embraces regulations affecting the health, good order,
morals, peace and safety of society. Under this power all sorts of restrictions
and burdens may be imposed, having for their object the advancement of the
welfare of the people of the State, and when these are not in conflict with
established principles, or any constitutional prohibition, their validity cannot
be questioned.
E  	 14
OPINION.
" It is equally true, that the police power of the State may be exercised by
precautionary: measures against the increase of crime or pauperism, or the
spread of infectious diseases from persons coming from other countries; that
the State may entirely exclude convicts, lepers, and persons afflicted with
incurable disease; may refuse admission to paupers, idiots, lunatics and
others, who from physical causes are likely to become a charge upon the
public, until security is afforded that they will not become such a charge; and
may isolate the temporarily diseased until the danger of contagion is gone.
The legality of precautionary measures of this kind has never been doubted.
The right of the State in this respect has its foundation, as observed by Mr.
Justice Gkieb, in The Passenger cases, ' in the sacred law of self-defense,
which no power granted to Congress can restrain or annul.'
" But the extent of the power of the State to exclude a foreigner from its
territory is limited by the right in which it has its origin, the right of self-
defense. Whatever outside of the legitimate exercise of this right affects the
intercourse of foreigners with our people, their immigration to this country,
arid residence therein, is-exclusively within the jurisdiction of-the general
Government, and is not subject to State control or interference."    (P. 151.)
In Chy Lung vs. Freeman, reported in 2d Otto, the Supreme Court of the
United States, referring to the same subject, said:
"We are not called upon by this statute (a statute of California) to decide
for or against the right of a State, in the absence of legislation by Congress,
to protect herself, by necessary and proper laws, against paupers and convicted criminals fromabroad; nor to lay down the definite limit of such right,
if it exist. Such a right can only arise from a mtal necessity for its exercise
and cannot be carried begond the scope of that necessity."    (P. 280.)
In Bailroad Co. vs. Husen, reported in 5th Otto, the Supreme Court of the
United States, referring further to this subject, said:
" It may also be admitted,   that the   police   power of a State justifies
the   adoption   of precautionary   measures  against social evils.    Under it
a   State   may   legislate   to prevent  the   spread  of   crime, or pauperism,
or • disturbance of the peace.     It may exclude from its limits convicts
paupers, idiots and lunatics, and persons likely to become a public charge  as
well as persons afflicted by contagious or infectious diseases; a right founded
as intimated in The Passenger cases, (7 How., 283,) by Mr. Justice GEiEB,-in
the sacred law of self-defense.    (Vide, 3 Sawyer 152.)    The same principle,'
it may also be conceded, would justify the exclusion of property, dangerous
to the property of citizens of the State: for example, animals having contagious or infectious diseases. All these exertions of power, are in immediate
connection with the protection of persons and property against noxious acts
of other persons; or such a use of property as is injurious to the property of
others.    They are self-defensive."    (P. 471.) T
mm
APPENDIX.
15
APPENDIX.
History of the legislation of the Supervisors of the city and
county of San Francisco against the Chinese, culminating
in the passage of the present ordinance generally hnown as
the " Queue Gutting Ordinance" compiled hy one of the
counsel in the above case from the records of the Supervisors and the newspapers of the city.
An ordinance of the city and county of San Francisco
"regulating lodging-houses," was passed July 29th, 1870.
Section one required that every house, room, etc., except
prisons, etc., occupied as a lodging, etc., in which persons
lived or slept, should contain within the walls of such house,
room, or apartment, at least five hundred cubic feet for each
adult person dwelling Or sleeping therein; and that any owner
or tenant of any house, room or apartment, who should lodge,
or permit to be lodged in such* room or apartment, more than
one person to each five hundred cubic feet of air in such
room, house, or apartment, should be deemed guilty of a
misdemeanor, and for every offense should be fined not less
than ten, nor more than five hundred dollars, or imprisoned
in the city prison not less than five days, nor more than three
months; or both such fine and imprisonment.
Section 2 imposed the same penalty on each occupant.
Section 3 required the Chief of Police to detail an officer
" to examine into and arrest."
In May, 1873, a number of Chinese were arrested under
this ordinance; accounts of which, and of the action of the
Police Court thereon, were published in the San Francisco
Evening Bulletin, a leading paper of large circulation, in its
issues of May 20th, 21st and 22d, 1873, extracts from which
are given below:
[Bulletin, May 20, 1873.]
CHINESE  LODGING  HOUSES—INTERESTING TEST  CASE  INSTITUTED.
" One of the sanitary provisions of the City Code requires
that every person shall have five hundred cubic feet of air
in the room he or she occupies as a sleeping apartment. It
is notorious that this ordinance is utterly disregarded
in the Chinese quarters; where the lodging-houses are
more densely crowded than the steerage of an emigrant
ship;- and it is determined to test its validity as applicable to our Chinese population." Then follows an account
of the arrest and incarceration of 45 Chinese.
il 16
APPENDIX.
[Bulletin, May 21, 1873.]
Sanitary Precautions.
CHINAMEN   PINED   FOE   OCCUPYING   LESS SPACE   THAN   THE   LAW
ALLOWS.
" The police authorities having raked up an ordinance which
requires that each and every dweller in the city shall be accorded 500 cubic feet of clear atmosphere in his or her sleeping apartment, the officers are enabled to find sufficient to
keep themselves busy for the next six months in stirring up
the Chinese lodging dens. * * * * In the(| first raid
on Monday night, the police hauled fifty-one lodgers out of a
basement on Jackson street, having about the same capacity
as the forecastle of a coaster. The whole rabble were brought
before the Police Court yesterday morning,1* and convicted of
violating the ordinance in question. In order to relieve an
over-crowded condition of the cells for new-comers, they
were ordered for sentence at six o'clock the same evening,
when a fine of $10 was inflicted on each. The action has
caused great consternation in the Chinese quarters, and
if persisted in, the Chinese population will spread out
like oil upon the troubled waters, and probably, the companies may be compelled to lease the remainder of the city
for the accommodation of the rapidly-increasing Mongol
element.
Meanwhile, the police are earnestly engaged in mathematical calculations, with plans and diagrams, to determine about
the precise space a Chinaman requires to occupv while in the
flesh." VJ
[Bulletin, May 22, 1873. |
CHINESE OBSTINACY.
| " The Mongols have determined upon the policy of worrying the authorities in their attempt to enforce the ordinance
prohibiting the unwholesome crowding of lodging houses, in
the hope of rendering the effort futile.
"The large gang brought up and fined on Tuesday, with the
reinforcements to-day, have completely filled the prison accommodations. And if the crusade is continued, the cattle
pound, or some other spacious inclosure, will have to be utilized
for their confinement. A few were inclined to pay the fines
imposed, but were prevented from doing so by the commands
* of the leading men in the Chinese quarter, who declared, in
substance, that they would make the city sick of prosecuting
and maintaining Chinamen in prison, under this ordinance."
I— APPENDIX. 17
There was a good deal of difficulty in enforcing this ordinance, on account of the number of Chinese who violated
it, and their omission to pay the fines imposed. They were
arrested in great numbers, and packed in cells where they
had not 100 cubic feet of air to the person. They over-crowded
the jails, and it was thought necessary by the authorities of
the city to adopt a policy which would compel the Chinese
to pay their fines. Accordingly, on the 25th May, 1873, three
ordinances were introduced in the Board, one of which was
specially directed to this object.    They were as follows:
Order No. , to provide for certain regulations regarding prisoners under sentence in the county jail of the city
and county of San Francisco.
The people of the city and county of San Francisco do
ordain as follows:
Section 1. Each and every male prisoner incarcerated or
imprisoned in the county jail of the city and county of San
Francisco under and pursuant to a judgment or conviction
had by the Police Court of the city and county of San Francisco, shall, immediately upon their arrival at said county
jail, under and pursuant to a judgment or sentence as aforesaid, have the hair of their head cut or clipped to a uniform
length of one inch from the scalp thereof.
Section 2. It shall be the duty of the head jailer of said
county jail to enforce  the provisions of this order.
Order No. #—, regulating the removal of the remains of
deceased persons from cemeteries within the limits of the
city and county of San Francisco.
The people of the city and county of San Francisco do ordain as follows:
Section 1. No person, or persons, shall remove, or cause to
be removed, from any cemetery or graveyard .within the
limits of this city and county, the remains of any deceased
person, or persons, there placed or deposited, without the
written permit of the Coroner of this city and county, allowing and permitting such removal being first had and obtained.
Section 2. Any and every person, or persons, violating the
provisions of Section one of this order, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined a
sum not less than one hundred, nor more than five hundred
dollars.
Order No.  , Amendatory of Subdivision 25,  of Sec. 18 APPENDIX.
9, of Chapter VIII, of Order No. 697, regulating licenses for
keepers of laundries and laundry offices:
The people of the city and county of San Francisco "do ordain as follows:
Section 1. Subdivision 25, of Section 9, of Chapter VIII,
of Order No. 697, is hereby amended so as to read as follows:
For keepers of laundries, or laundry offices, or wash-houses,
the sum of fifteen ($15) dollars per quarter for each and
every man and male minor employed or engaged or connected
with such laundry, or laundry office, or wash-house, including
the proprietor or proprietors, owner or owners, manager or
managers, agent or agents thereof.
The introduction of these ordinances led to an exciting debate, which is reported in the Bulletin of May 27th, 1873,
from which we extract as follows:
" THE CHINESE PUZZLE.
" Proposed local legislation to check immigration from China—
Interesting debate in the Board of Supervisors last night.
" It is generally known * * * * that to deprive a
Chinaman of his queue is to humiliate him as deeply as is
possible.
•'It is also very generally known, that the bones of no
Chinamen are permitted to remain in a foreign land, and
that all Chinese, before leaving their country, feel assured
that, after death, no matter where they die, their bones will
be taken back to mingle with their native sod.
' _. " So strict are all Chinese on these two points, that it is believed, if they were prevented from wearing their tails here, and
if after death their bones were denied transportation to their
native land, the immigration of this superstitious people
would be effectually stopped, and a reflux commence from our
shores to the Flowery kingdom.
I Sharing this belief, Supervisor Goodwin proposed at the
meeting last night the following ordinances."
[Then follow copies of the said ordinances.]
"All of these were passed to print, after a few fervid remarks from Mr. Goodwin."
Mr. Story offered a resolution, preceded by a long preamble, proposing a pledge not to employ Chinese labor,
* * * and m explanation and support of his resolution,
said, I that the resolutions adopted at the last meeting of the
Board, calling for congressional action on the Chinese evil
would have no effect, and he didn't believe any man who APPENDIX. 19
voted for them thought they would. The treaty between
the United States and China was highly advantageous to our
government, and it was not to be supposed that it would be
abrogated.
" The Chinese evil should not be attacked from'a political
standpoint, with a view to making political capital. The
men who have been most eager to denounce Chinamen, and
even to abuse them, are generally found patronizing and accepting the patronage of Chinamen. It is an easy matter to
ascertain the owners of the real estate in Chinatown, and if
a list of such owners should be made, it would be found that-
most of them are anti-Coolie men. Thehackmen, and others
who assault Chinamen, are the first to rush to the wharves,
upon the arrival of steamers from China, to make a few dollars by transporting the immigrants to Chinatown.
"The opposition and denunciation of such men is not
based upon principle."
"The resolution offered by Mr. Story met the question
properly."
The Alta California, another leading journal of San Francisco, of May 27, 1873, also contained an account of these
proceedings, which commences as follows:
PAGAN ORDINANCES.
No more Pigtails—No further consignment of Dead Celestials to
the Flowery Kingdom—Proposed Tax on Chinese Laundries—A Practical Suggestion.
The most important subject for consideration by the
Board of Supervisors, last evening, appeared to be the
Chinese question. The members felt ripe for the subject.
When the order for motions and resolutions was reached,
Supervisor Goodwin offered the following ordinance, which
unll make the sleeping order operative.
[Then follows a copy of the Queue Cutting Ordinance.]
It was passed to print.
"NO MORE DEAD CHINAMEN FOR CHINA.
"Mr. Goodwin also offered the fowowing ordinance, which
was passed to print. Its object is to prevent the shipment to
China of the remains of deceased Chinamen."
[Then f6llows the Disinterment ordinance.]
"A BLOW AT CHINESE  LAUNDRIES.
"An amendment to the order regulating municipal licenses
was also offered by Mr. Goodwin as follows:"
J 20 APPENDIX.
[Then follows a copy of the Laundry ordinance.]
" Mr. Kenny offered an amendment to the order regulating
licenses for keepers of laundries and laundry offices, which
provides that keepers of laundries and laundry offices, who
employ no vehicle drawn by animal power, shall pay $15 per
quarter license.    No other change is made in the ordinance."
[The large laundries send their washing home in wagons,
and pay $3 per quarter; the Chinese convey theirs in baskets.
The amendment was adopted.]
"Mr. Goodwin supported his ordinance by saying that 'the
general Government had so tied our hands by the treaty with
China, that we must depend entirely upon local legislation
to discourage the immigration of Chinese, who are .coming here
now at the rate of two thousand a month. He had no doubt
that the Coroner would do his duty, as contemplated by one
of the ordinances, and if he failed, a gentleman will be elected
who will regard the wishes of the people.'
[Then follows a report of Mr. Story's resolution and the
debate thereon.]
All these ordinances were passed to print. The law requires that such orders must be printed in the official journal five days, with the yeas and nays, before coming up for
final action.
On the 2d of June, 1873, the Bulletin had the following
article on the subject of one of these ordinances:
"THE SUPERVISORS ON HAIR CUTTING.
" The Board of Supervisors have passed to print an ordinance requiring the cropping of the hair of every person who
is serving a term in the jail under a criminal conviction. The
ordinance, while it nominally makes no discrimination as to race
or condition, is aimed specially at the Chinese. The enforcement of the Sanitary ordinance against the over-crowding of
Chinese is just, and ought to be certain. But it should be
enforced lawfully. The Chinese go to jail, in most cases,
rather than pay the fine. The readiness to be fed and
lodged for a week or more, at the public expense, extracts all
the real penalty there ig-in the Sanitary law. Five hundred
or a thousand Chinese going willingly to jail, and rather liking the opportunity for free board and lodging, quite superior to their own miserable accommodations, presents a new
phase of the question. The judgment has no penalty. The
Chinese who offend against the ordinance refuse to pay
the fine,  but go to jail and board it out.    The Supervis- APPENDIX, 21
ors, casting about for some means of relief, have hit upon
the plan of cropping the hair. White criminals would care
nothing about this, and the ordinance would probably never
be enforced against them. The loss of a pigtail is a great
calamity to the Chinese. It is his national badge of honor.
If it is cut off, he is maimed. He will not venture home
without it, and becomes a fixture from very necessity. The
sanitary regulation enforced in this way is a kind of boomerang, which comes back with telling effect. Whatever power
the Board has to make or enforce a penal ordinance, is found
under Article V, the 74th Section of the Consolidated Act.
The editor then quotes the language of the Consolidation
Act and the 16th and 17th Sections* of the Civil Rights Act
of May 31st, 1870, and comments as follows:
'' It might be well for .the Supervisors to read over these
sections carefully. It would be a novel sight—twelve Supervisors marching up to the Federal'Court to answer to an
indictment for misdemeanor, and then marching to jail for a
year, with a thousand dollar blister, by way of fine, besides.
" Some other way must be found to enforce a sanitary law
than the one which the Supervisors have devised.
" If Chinamen insist on violating a just sanitary law, their
pigtails cannot be safely cut off, but they can be made to
work Out their fines in cleaning the very city which they have
defiled. And this and other like punishments would probably make them respect the law."
On the evening of June 2d, two of those ordinances were
passed—the "Queue Cutting" and the "Laundry" ordinances.
In the Bulletin of June 3d, 1873, there is a report of the
proceedings and debate, which is as follows :
JOHN CHINAMAN AGAIN.
Another lively discussion on the Pigtail Order in the Board of
Supervisors; the Order finally passed.
AM
"In the Board of Supervisors last night the order passed
to print at the last meeting for clipping the hair of prisoners
at the County Jail came up for final action.
"Mr. Forbes moved that the order be indefinitely postponed.
"Mr. Shrader moved that the order be finally passed.
"Mr. Goodioin seconded the latter motion.
"Mr. Menzies suggested that the order might be illegal, as 22 APPENDIX.
stated by the Bulletin, and thought it ought to be referred to
the City and County Attorney for his opinion.
"Mr. Forbes then spoke as follows : I shall not be considered inconsistent in opposing the resolution before us. I
have unhesitatingly opposed all the so-called anti-Chinese
resolutions introduced at our meetings, because I believe
they originated in a spirit and temper unconstitutional, unworthy, reprehensible, and are calculated to stir up and
incite a certain class of our population to acts of violence
and bloodshed. Nations achieve greatness by magnanimous
acts, and our own nation has made its name peculiarly
glorious by adopting that policy. Let us, as a part of our
nation, consider this whole .matter in a spirit of liberality
and unprejudiced deliberation of which we will not nave
cause to be ashamed. The whole letter and spirit of these
resolutions are illegal, narrow-minded, contemptible and
utterly unworthy the sanction of tnis body. We ought not
to do an illegal act by imposing unequal taxation, which the
celebrated "one horse" ordinance contemplates, nor should
we permit ourselves to favor the passage of the barbarous
orders, as to queue cutting and disinterments, which
breathe a spirit only worthy of savages. I pity the man
who conceived and brought forth these remarkable orders.
"We learn, that the question of foreign immigration has
been the source of much anxiety to nations, 'from the
earliest perjod of history.' Even in our own land, and
within the present century, agitations and excitements
have sprung up as to the result of the great influx of
Irish and German population. In Boston, that hotbed
of propriety, it even went so far that upon a commission being granted to an Irish company, the Montgomery Guard, the other companies of American militia
marched off Boston Common as the Irish company
marched on. And then followed an excitement and alarm
' as to German immigration, which was just as absurd and
groundless, as time has proved, and only good results have
followed where evil was predicted. So has it been, so will it
ever be. Our free land, to her praise may it be said, has
ever thrown wide the cl^or to immigrants from all nations.
'"'A warm and welcome hearty' have all received, and
from this has grown up the wonderful prosperity and progress which fully challenges the admiration of the world.
"The grand progressive battle-cry of our land has been
•Civil and Religious Liberty.' It is the key-note of our
Constitution. People of all nations, kindred tribes and
tongues, meet here upon one grand, common, neutral ground. APPENDIX. 23
Our forefathers sought, found and established this priceless
boon, and its great principles have been defended and maintained, even unto the shedding of blood.
" Shall we now turn our backs on this center strength of
our republic at the suggestion of some of our members
who have awakened suddenly from 'pleasing dreams to a
prophetic realization of great dangers ?' Can we, for any
selfish political aims or aggrandizement, do violence to our
consciences by undertaking to follow a false course in regard
to ' the great right ? Are we to be governed by the narrow, selfish aims and wishes of others themselves, or most
of them, indebted to the enjoyment of this very right they
would now destroy for all they are and all they have ?
' j Shall we yield to the sway of political wireworkers, who,
if Chinamen could vote, would obsequiously fawn upon
them, as they now do upon the once despised and hated
negro ? Shall we follow the directions of these debauched
political hacks and degrade ourselves by taking their side
in opposition to the grand principles which have mainly
contributed to make us a great nation ? For one, I do not
propose to lend my aid or influence to any such degrading
purpose.
" For argument's sake, let us suppose these illegal, unconstitutional ordinances (which are also contrary to the Constitution of the United States) are passed, enforced, and
followed by others still more degrading, which would drive
all the Chinese out of this State within sixty days, (this
period having been fixed as the minimum limit of time for
this exodus by some of our newspapers,) what would follow?
I answer :
" First.—All the manufacturing interests of our State would
be seriously embarrassed, and most of the manufactories
closed.
" Second.—The work of building railroads would immediately come to a stand-still.
"Third.—The growing crops of California could not be
gathered.
'' Fourth.—Fully one half of Our dwellings in San Francisco would be closed, and last, through not least, I fear
some of the members of this Board would fail to put in an
appearance at our meetings, for the lack of clean shirts.
'' It strikes me, it would be a most lamentable failure on our
part, as a matter of State policy, to drive away from us this
force, be it white, black or yellow, which is of so much importance.
"Nor do I propose to make a plea in favor of Chinese emi- 24 APPENDIX.
gration, per se; I do not favor their coming, but they are
here—here under the provisions of a treaty, and in. common
with others, have rights; whatever these rights may be, I
would maintain and respect them.
'' I believe, that Congress, at our request, (a small part of the
population of California and San Francisco,) will not hastily
abrogate the provisions of the existing treaty between the
United States and China, which is generally admitted to be
favorable to us as a nation, and which has only recently
been secured after long years of diplomacy and at great
expense; it appears unreasonable for us to believe otherwise.
" Mr. Menzies replied warmly to Mr. Forbes. He said the
latter's views were idealistic, and that there -was no common
sense in anything he said. This, instead of being a white
man's country, was getting to be nothing more than a
province of China. Even, on the ranches, the Chinese are
driving away white, labor. The question is, are we better
off with white laborers or Chinamen ? He, Menzies, counseled no violence toward the Chinese; but thought the plan
suggested by the proposed order was a good one."
" Mr. Forbes responded, that he thought his remarks were
about as practical and sensible as those of Mr. Menzies.
He declared that he had not favored the immigration of
Chinese; but thought, that the proposed order was unworthy of an enlightened people.
(Rev. 0.„ Gibson was allowed to read a plea for the Chi-
•   nese, which is omitted.)
" Mr. Shrader made some very earnest remarks in support
of the proposed order.     *     *     *     He declared that the
.   most stringent measures  should  be taken to check the increase  of our Chinese population.
" Mr. King spoke briefly in support of the proposed order.
He said he held up both hands in favor of its passage.
pi " Mr. Taylor said, if the order was so amended as to take
•effect in thirty days he would vote for  it;  otherwise not.
" Mr. Story said it was idle for the Board to pass an order
that on its very face was unconstitutional.
On motion of Mr. Goodwin, the order was so amended as
to make it the duty of the Sheriff, instead of the head
Jailer, to execute it.
The motion was then put on the motion to refer to the City
and County Attorney, which was lost. The order was then
finally passed."
In the Alia California of June 3d, 1873, appears a report
of the same debate, which is headed: —P
APPENDIX.
25
*' 2he pagan ordinances—The hair-cutting ordindncediscussed—
Sound opinions of Supervisor Forbes—Views of Supervisor Mendes and others—The Chinese define their position—The order amended by making the Sheriff Chinese hair-dresser, and finally passed—Other ordinances,
and their disposal."
It is stated, that "they proved the subject of a long and
acrimonious debate. Mr. Menzies moved that the ordinances be laid over one week, and that it be referred to the
City and County Attorney for his opinion as to its legality."
" This was lost, Mr. Goodwin explaining that it was
drawn up by the Deputy City and County Attorney."
* i Mr. King, in explanation of his vote, said the question had
long occupied the attention of the people, and he had nothing to take back. He never employed Chinamen, and if
compelled, would wash his own shirt before one of them
would do it. He said, ' if the Chinese respected the Sleeping ordinance, this one would not be passed." I
" Mr. Story said, he expected the members would approach
the subject with dignity, and not cater to public opinion, so-
called. He thought men sent to the county jail for twenty-
four hours should not have their hair cut."
" Mr. Taylor took the same view."
The two ordinances which were passed were vetoed by the
Mayor, Hon. William Alvord.    Following are copies of his   •
veto messages:
the message vetoing the queue ordinance.
Mayor's Office, \
San Francisco, June 9, 1873. j
To the Honorable the Board of Supervisors:
Gentlemen: Order No. 1097, "To provide for certain
regulations regarding prisoners under sentence in the county,
jail of the city and county of San Francisco," passed by your
Honorable Board on the 2d of June, 1873, has been presented to me for my approval. After maturely considering
said order, I now return the same to your honorable body,
as I am unwilling to approve or sign it.
My objections to said order are the following:
lst. The manifest motive of said order is to inflict upon
the persons of Chinese, convicted of misdemeanors, a punishment which, in their estimation, is shameful and degrading. In my judgment, minor offenses, which do not belong
to the class of crimes called " infamous," should not be pun- t
26 APPENDIX.
ished by penalties which inflict disgrace upon the person of
the offender.
2d. On the 18th of June, 1858, a " Treaty of peace, amity
and commerce, between the United States and China," was
concluded at Tientsin. This treaty was ratified by the
United States on December 21st, 1858, and was proclaimed by
the President of the United States on January 26th, 1860.
The preamble of this treaty recites:
Whereas, The United States of America and the Ta Tsing
Empire, desiring to maintain firm, lasting and sincere friendship, have resolved to renew, in a manner clear and positive,
by means of a treaty or general convention of peace, amity
and commerce, the rules which shall in future be mutually
observed in the intercourse of their respective countries, etc.
The following are some of the provisions of said treaty •
Article 1. There shall be, as there always has been, peace
and friendship between the United States of America and
the Ta Tsing Empire, and between their people, respectively.
They shall not insult or oppress each other for any trifling
cause, so as to produce an estrangement between them, etc.
Article 2. All citizens of the United States of America in
China, peaceably attending to their affairs, being placed on
a common footing of amity and good-will with subjects of
China, shall receive and enjoy for themselves, and everything appertaining to them, the protection of the local authorities of government, who shall defend them from all insult
or injury of any sort. If their dwellings or property be
threatened or attacked by mobs, incendiaries, or other violent
or lawless persons, the local officers, on requisition of the
Consul, shall immediately dispatch a military force to disperse the rioters, apprehend the guilty individuals, and punish them with the utmost rigor of the law, etc.
Article 29. The principles of the Christian religion, as
professed by the Protestant and Roman Catholic churches,
are recognized as teaching men to do good, and to do to
others as they would have others do to them, etc.
On the 28th day of July, 1868, certain additional articles
to the aforesaid treaty of June 18th, 1858, were concluded
between the United States of America and the Ta Tsing Empire, which additional articles were duly ratified, and thereafter, and on the 5th day of February, 1870, proclaimed by
the President of the United States.
The following are some of said additional articles:
Article 4. The twenty-ninth article of the treatv of the
18th day of June, 1858, having stipulated for the exemption
of Christian citizens of the United States and Chinese con- APPENDIX. 27
verts from persecution in China on account of their faith, it
is further agreed, that citizens of the United States in China, of
every religious persuasion, and Chinese subjects in the United
States, shall enjoy entire liberty of conscience, and shall be
exempt from all disability or persecution on account of their
religious faith or worship, in either country. Cemeteries
for sepulture of the dead, of whatever nativity or nationality,
shall be held in respect and free from disturbance or profanation.
Article 5. The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and
also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from one
country to the other, for the purposes of curiosity, of trade,
or as permanent residents, etc.
Article 6. Citizens of the United States, visiting or residing in China, shall enjoy the same privileges, immunities, or
exemptions in respect to travel or residence as may there be
enjoyed by the citizens or subjects of the most favored
nation, and reciprocally Chinese subjects, visiting or revisiting in the United States, shall enjoy the same privileges,
immunities and exemptions in respect to travel or residence,
as may be enjoyed by the citizens and subjects of the most
favored nation. But nothing herein contained shall be held
to confer naturalization upon citizens of the United States in
China, nor upon the subjects of China in the United States.
Article 7. Citizens of the United States shall enjoy all the
privileges of the public educational institutions under the control of the government of China; and, reciprocally, Chinese
subjects shall enjoy all the privileges of the public educational
institutions under the control of the government of the
United States which are enjoyed in the respective countries
by the citizens or subjects of the most favored nation. The
citizens of the United States may freely establish and maintain schools within the empire of China, at those places
where foreigners are by treaty permitted to reside; and,
reciprocally, Chinese subjects may enjoy the same privileges
and immunities in the United States.
These treaties are the supreme law of the land, and are as
binding upon your honorably body, and upon myself, as an
express statute of our own State Legislature.
By these treaties our Federal Government has pledged
the national faith to firm, lasting and sincere friendship with
the Chinese Empire; have promised that the people of
the United States should not, for any trifling cause, insult 28 APPENDIX.
or oppress the people of China; have covenanted that
Chinese subjects in the United States should be exempt
from all disability or persecution on account of their religious faith; have asserted that there is mutual advantage
from the free migration and emigration of the citizens of the
two countries, (the United States and China,) respectively,
from the one country to the other, for the purpose of
curiosity or trade, or permanent residence; have solemnly
engaged that Chinese subjects residing in the United States
should enjoy the same privileges, immunities and exemptions,
in respect to travel or residence, as citizens of the most
favored, nation; and finally, have invoked, in the dealings
with the two nations, the Christian sentiment—"Do unto
others as you would have them do unto you."
The passage of such an enactment would, in my judgment, be a clear and palpable violation of the provisions of
aforesaid treaties, a breach of allegiance to the Federal
Government, and a manifest disregard of your and my obligations as citizens of the United States of America.
3d. On the 31st of May, 1870, the Congress of the
United States passed an Act, generally called The Civil
Rights Act, which provides as follows:
Section 16. That all persons within the jurisdiction of the
United States shall have the same right in every State and
Territory of the United States 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
person 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 none other, any
lawj statute, ordinance, regulation, or custom, to the contrary notwithstanding. No tax or charge shall be imposed
or enforced by any State upon any person immigrating
thereto from a foreign country, which is not equally imposed and enforced upon every person immigrating to such
State from any other foreign country, and any law of any
State in conflict with this provision is hereby declared null
and void.
Section 17. That any person who, under color of any
law, statute, ordinance, regulation, or custom, shall subject,
or cause to be subjected, any inhabitant of any State or
Territory, to the deprivation of any right secured or protected by the last preceding section of this Act, or to
different punishment, pains or penalties, on account of such
person being an alien, or by reason of his color or race,
than is prescribed for the punishment of citizens, shall be •
APPENDIX. 29
deemed guilty of misdemeanor, and, on conviction, shall be
punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion
of the Court.
Section 18. That the act to protect all persons in the
United States in their civil rights, and furnish the means of
their vindication, passed April nine, eighteen hundred and
, sixty-six, is hereby re-enacted, and sections sixteen and
seventeen thereof shall be enforced, according to the provisions of said act.
Considering your said Order No. 1097, to be of the
character, and made for the purposes which I have already
stated, it is, in my judgment, obnoxious to the foregoing
provisions of the Civil Rights Act, as being, though
general in its terms, in substance and effect, a special and
degrading punishment, inflicted upon Chinese residents
for slight offenses, solely by reason of their alienage and
race.
4th. The power of your honorable body to prescribe penalties is derived from the 74th section of the Consolidation
Act, which provides as follows:
"Section 74. The Board of Supervisors of the city and
county of San Francisco shall have power, by regulation or
order, * * * * *        '   * *
Eleventh—To determine the fines, forfeitures and penalties
that shall be incurred for the breach of regulations established by the said Board of Supervisors, and also for a
violation of the provisions of this act, where no penalty is
affixed thereto, or provided by law; but no penalty to be imposed shall exceed the amount of one thousand dollars, or
six months' imprisonment, or both."
The 74th section of the Consolidation Act, in defining the
word "penalties," as there used, to include both fine and
six months' imprisonment, has given a broader signification
to the word than is usual.
In law, the term Penalty is usually applied to a pecuniary
punishment. Penalty is defined in Burril's Law Dictionary
as "a pecuniary punishment, or sum of money imposed by
statute, to be paid as a punishment for the commission of a
certain offense."
This delegation of legislative authority to your honorable
body, especially, when it relates to fines, forfeitures and penalties, must, according to the ordinary rules governing
statutory interpretations, be strictly construed. ^
The same section which confers the power in question,
also limits it: "No penalty to be imposed, shall exceed the
J 30
APPENDIX.
amount of one thousand dollars, or six months' imprisonment, or both."
This limitation, in my judgment, not only fixes the extreme
amount of the fines and imprisonment which you can impose
for a breach of regulations you have established; but also
restricts you as to the kind and character of the punishment
which you can inflict.
Under this grant of power, you cannot prescribe whipping^
or branding, or any other mode of punishment than  fine  or
imprisonment, or both, to the limited extent expressed in
said 74th section.
The mode in which your power in this regard can be exercised is defined by the Consolidation Act, and must be
strictly followed, for the mode is the measure of your
power.
In my judgment, therefore, you have no power under the
statute creating and defining your authority to enact said
order, because it imposes a punishment not enumerated in
said statute, different in kind and character from fine and
imprisonment, and one which is new, unusual, and to a
certain class of our population especially degrading.
With respect to the wisdom and policy of   encouraging ,
Chinese immigration, reasonable and honest differences of \
opinion exist; but this fact should not induce any of us to attempt to defeat the operations of the Federal Government in
reference to this or any other class of foreign immigration.
The whole subject is one especially and exclusively within
the jurisdiction and control of the general Government,
under and by virtue of those powers which have been surrendered to it by the several States, and no State (much less
a municipal corporation within a State) can legally or justifiably, or effectively, interfere with the national will or policy
in this regard.
My attention has been called to a case in point, decided in
the Supreme Court of this State, where it was held, as
follows:
In Lin Sing vs. Washburn, (20 California Reports, 575,)
our State Supreme Court has said: "It has always been the
policy of the Government to encourage immigration, and the
most liberal system of laws has been adopted to induce
foreigners to come to the country for the purpose of settlement and traffic. The fruits of this system are to be seen in
the. rapid increase of our population; the settlement and improvement of our fertile and extensive domain; and the
millions of wealth added year after year to every branch of
industry and trade.    The results of the system demonstrate APPENDIX. 31
its wisdom, but whether wise or unwise, it is a system which
the Government had a right to adopt, and with which no
State can constitutionally interfere. The whole subject of
trade and intercourse has been confided to the national will,
and if a State may so use its reserved powers as to defeat the
operations of this will, the Constitution, instead of being a
practical instrument, is a shadow and a myth."
So long as the nation, through its Legislature and Executive departments, enlarges its commerce by treaties with
Asiatic countries, and to secure protection to its own citizens
in those countries, pledges protection to their citizens in this
country, it is the duty of the Federal Government, as an honorable and Christian power, to maintain and enforce those
pledges; and of ourselves, as just and law-abiding citizens,
to fulfill the obligations which flow from them.
As Justice Field has observed, in a charge given by him
to a Grand Jury in this district: "H public policy requires
that the Chinese should be excluded from our shores, let the
general Government so provide and declare, but until it does
so provide and declare, they have a perfect right to immigrate to this country, and whilst here, they are entitled,
equally with all others, to the full protection of our laws."
I trust, that after having considered the above quoted
laws and legal authorities, your honorable body will concur
with me in the objections now submitted.
William Alvord, Mayor.
the message vetoing the laundry ordinance.
Mayor's Office,
San Francisco, June 9, 1873.
To the Honorable the Board of Supervisors:
Gentlemen—In returning to your honorable body, Order
No. 1098, without my signature, I desire to call your attention to the injustice and hardship which would be inflicted
upon the poorer classes who are engaged in the laundry .
business, should the ordinance become a law. Laundries are
places, or rooms, where clothes are Washed, and no matter
whom the keepers of such places or rooms may be, all will be
obliged to pay the onerous license tax of $15 per quarter,
unless they are able to employ a vehicle drawn by animal
power, and in that event, the license is fixed at $2 per quarter;
should they be so prosperous as to be able to employ two
vehicles drawn by animal power, then they are to be taxed at
$4 per quarter, which is $11 per quarter less than it is proposed to tax the poor white or colored woman, or others
carrying on the same business, who,  from poverty, are un- 32
APPENDIX.
able to employ vehicles drawn by animal power. The inequality of rates to be charged for license is so apparent,
that I deem it only necessary to call your attention to the
fact to insure a revision of the rates on more equitable
grounds. It is well known, that there are hundreds of poor
women (many of them have large families to support,) who
gain their livelihood by washing, on whom this licence tax
would prove a dire affliction; therefore, I return the order
without my approval.
William Alvord, Mayor.
On the 23d of June, an attempt to pass the queue-cutting
ordinance over the veto of the Mayor failed. An account of
the failure is found in the Atta California' of June 24, and
in the Bulletin of the same date.
[Extracts from the " Alta California " Eeport.]
" The Pagan Orders—A Grand Victory for the City—The
Bobtail Ordinance Killed—Supervisor Forbes Pens a
Memorial Epitaph—Mr. Menzies Abandons the Order as
Illegal."
"The Pagan ordinance introduced in the Board of Super-
isors five weeks ago, which was finally passed amid the most
exultant shouts of triumph from all morally and nationally
diseased quarters of the city, was killed Jast evening by a
very decided vote. The Mayor vetoed the order which
damped the ardor of leprous enthusiasts, and at the last
meeting of the Board it was laid over one week. Thoughtful
supervisors who voted for the order when first introduced,
and on final passage believing that it was a simple jail ordinance, and legal, had time to inquire and post themselves
as to its purport and meaning, since the Mayor's veto mes*
sage was received, and they found that the position assumed
by those opposed to the order was correct, they changed
their minds and changed their votes,  and the order is now
finally and forever strangled.
*   *
"THE  BOBTAIL KILLED.
'' The bobtail order came up on the question of sustaining
the Mayor's veto."
" Mr. Goodwin and Mr. Swain spoke in favor of the order.
Mr. King stated that since he voted he had examined the
question and found he was wrong, and proceeded to read a
written speech, as follows:
" The Chinese question, which has agitated the minds of our
working-classes for the past four or five years, and has been
made a test question with all candidates'for office who have APPENDIX. 33
been interviewed upon the subject previous to the day of
election, has at length found its way into the Board, in the
shape of an ordinance, which inflicts a penalty upon all
criminals convicted in our Police and Municipal Courts,
said Courts acting under the Consolidation Act, which
gives them limited powers, and I can find no authority or
power with this Board to add to or increase the penalty imposed by them.
"Section 67, Article 5th, says: 'The powers of the
Supervisors are limited.' The last clause reads as follows:
* The powers of the Board of Supervisors are those granted
in this act, and they are prohibitedfrom exercising any other.'
Therefore, this Board have no power or authority to add to
the penalty imposed by the Police Judge.
" There is another very grave objection to this ordinance.
It does not apply to the Chinese alone. It covers all classes
of whatever nation, race or color, the adopted citizen and
the native born American as well.
"Mr. President, some of us have resided in this State
twenty-four years or more—pioneers of '49. How many of
our number have been successful ? We can look around us
and find comparatively few. How many times has the devouring element in one short hour swept away our
possessions and left us almost destitute? How many of
these discouraged and driven to desperation by the pressure
of hard times, have committed some minor offense and been
consigned to the County Jail. Under this ordinance they,
too, would be subject to this extra penalty, and after serving
the term of imprisonment for the crime of which they were
convicted, would come forth again to the world with the
brand of Cain upon them, disgraced and despised in the
eyes of their former associates. Vou, Mr. President, today in your high and exalted position, by some reverse of
fortune, might be reduced to penury and want, and under
this wholesale order be made subject to its penalty, and
should we pass this unlawful act, we would not only be
amenable to the laws of our State, but subject to the personal prosecution by the aggrieved and afflicted party. And
now, in conclusion, Mr. President, as an. American citizen,
I cannot vote for this sweeping and unauthorized order,
which would be in contravention of the laws of the United
States, and also of the treaty with China.
" But there is not a member of this Board who will do more
with his means and influence to advance the interest or to
aid and improve the condition of the working-classes than
myself.    To accomplish this, however, some other method
J 34 APPENDIX.
must be resorted to than that of passing ordinances contrary to the laws of the nation.
'' This order was introduced, not merely for the benefit of
the laboring classes, but it was offered as one of those
numerous political clap-traps which make their appearance
upon the eve of a very important election, for the purpose of
making capital for some aspirant -for political favors. I
trust that tne good sense and judgment of the voters of this
State will lead them to look to the h gher law, and to seek
some other remedy whereby the existing evil can be overcome.
" This can only be accomplished by appealing to our
general Government to so modify the treaty with China
that this unprecedented immigration may be speedily
checked. Let us not' then, resort to any unlawful act of
violence, for which we would be called to account, and
which would thus bring disgrace upon our nation.
MR.  MENZIES SUPPORTS THE MAYOR.
" Mr. Menzies supported the veto in an address, of which
the following is the substance: I am fully in accord
with the spirit of this order, but it is too general and too
sweeping in its character to merit my approval. The order
was gotten up, not for clap-trap, as has beeu stated, but because the Chinese refused to respect our health ordinances,
to which they offered a passive resistance. They said they
were prepared to lay in prison, rather than comply with our
sanitary regulations, and it was to enforce obedience to our
laws that the order was introduced. I have consulted the
best lawyers pi the city on the legality of the order, and
they are all of. the opiuion that it will not hold water.
If it read that any person violating any sanitary regulation, shall have his hair cut, it would be valid. This
is really what the order contemplates. But we must adopt
some other that will be respected, and if fines will not do,
then let us add pains and penalties. The discussion has
wandered far away from the facts, and some members have
jumped to the conclusion that it is persecution, which is not
the case. I hope a proper order will pass, but this is not
the one, and I cannot vote for it.
"Mr. Shrader, insisted that the order was a sanitary regulation, and thought it strange that sanitary laws could not be
enforced here as well as in other cities.
" Mr. Forbes.—I have been induced to take but one view of
this question. It is not a sanitary measure. That is a
plausible argument, but it will not do.    I do not view it as 1
appendix! 35
a question of Chinese immigration, but as a question of right,
and there I stand, and will for all time. It is the question
of the grand principles of the nation which opens wide its
gates to the citizens of the world.
" The question, ' Shall the order pass notwithstanding the
objections of the Mayor' was then put. The vote stood:
Ayes: Swain, Kenny, McCarthy, Goodwin, Shrader, Barrett and Cummins—7. Noes: Menzies, King, Forbes,
Story and Taylor—5.
" The order is dead."
The laundry ordinance came up at the same time for
passage over the Mayor's veto.
Mr. Goodwin moved that it be finally passed.
"Mr. Forbes moved its indefinite postponement, on the
ground that it contemplates an unequal and oppressive tax."
" Mr. Menzies said that there are a number of white people in this city who could not afford to pay so onerous a tax
of $15 a quarter. The Chinamen could, and they ought, but
they are not reached by this order, which falls on all alike.
This is not the proper order, but it can be so amended as to
arrive at the same result. A measure should be framed
which would apply to this one class—the Chinese."    *****
"The order was finally passed; but in the case of the
People vs. Soon Kung, in the County Court of San Francisco
County, it was on the 9th July, 1874, declared invalid by the
Hon. John A. Stanley, County Judge, on the ground that it
was ' unequal in its operation' and dealt in ' odious and unjust discriminations.' ' m
The Bulletin of June 24, 1873, contains some particulars
which are not mentioned in the Alta's report. They are as follows :
The Mayor's vetoes of the anti-Chinese ordinance came up
for consideration in the Board of Supervisors last night.
The "Pigtail Order," providing for cutting the hair from
the heads of county jail prisoners, was first called up. j
. Mr. Goodwin read a written speech in" favor of passing the
ordinance over the veto. He laid stress on the fact that the
word Chinese was not mentioned in the order, and declared
that the Mayor, in stating that the order contravened treaty
rights, had perpetrated a great joke. He said that nine
tenths of the people demanded the passage of the order.
Messrs. Swain and Shrader spoke to the same effect. Mr.
King, who was one of those who voted for the order originally, also had a written speech.    He said he had seen his
J 36 APPENDIX*
error, and by examining the Consolidation Act, was convinced
that the Board had no authority to pass the order.
He denounced the proposed legislation as political claptrap.
Mr. Menzies declared himself fully in accord with the
spirit of the ordinance, but after deliberation, concluded that
it would not hold water. He regretted that he could not
vote for it.
Mr. McCarthy apologized for not having a written speech,
stating that " the fellow he bought of" had been writing for
the other side, and was not in trim to supply him with one
suited to his notions.
The question was put, '' Shall the order pass, notwith-?
standing the objections of the Mayor ?"
Messrs. Swain, Kenny, McCarthy, Goodwin, Shrader,
Barrett and Cummins voted aye; Messrs. Menzies, King,
Forbes, Story and Taylor voted no. As nine votes were requisite to override the veto, the Pigtail order was cut off in
its bloom.
Mr. Forbes then offered the following, saying he didn't
know if it would receive a second, but he hoped it would.
He offered it not because he thought it would pass, but because he thought it ought to pass: .
Resolved, That the Clerk be, and he is, hereby authorized
and directed to expunge from the minutes of this Board
order No. 1097, (the queue-cutting ordinance,) said order
being contrary to the constitutional laws of our land, illiberal
and unjust, both in letter and in spirit, and unworthy of a
place on the records of any civilized and enlightened nation.
Mr. Menzies smid the resolution was an insult to the intelligence of the Board, and entirely uncalled for.
Mr. Goodwin moved to indefinitely postpone it. Carried;
Messrs. Forbes, Story and Taylor voting no.
[Editorial from the "Alta" of June 25, 1873.]
" In this morning's issue of the Alta, we publish from various journals, not only in this State, but elsewhere, the
earnest and honest opinions entertained and expressed by
men who are free from the local animus that colors to a great
extent all discussions of the Chinese question here. However strongly our people may feel upon the subject of Chi^
nese immigration, a sense of common justice and honesty
lies at the base of our national character, and in these ex-r
tracts it finds expression. We commend the perusal of these
extracts to all who desire to know how the question is viewed
by onr fellow-countrymen elsewhere.    The universal com- APPENDIX. 37
mendation of Mayor Alvord for his sense of right, and his
pluck in following the dictates of his conscience in the support of law, however strongly he may have felt the influences
that tended toward a different course to that pursued by him,
must be very gratifying to him.
" THE PAGAN ORDINANCES.
" Public Opinion on Mayor Alvord's Vetoes—His Action Everywhere Endorsed.
" THE  VOICE  OF  THE   PRESS.
'' From the piles of newspapers among our exchanges, representing every section of the country, we make room for a
few of the many hearty endorsements and commendations of
Mayor Alvord's vetoes of the "Pigtail" and other ordinances. A very small portion of the whole would be more
than our columns could find room for.
MR.   SUPERVISOR NYE.
[From the New York " Times," June 11th 1873.]
The spectacle of a company of legislators gathered together
to make political capital by devising means to insult and
oppress a friendless class of people, is hardly calculated to
inspire feelings of .unlimited admiration. Such, however,
has been the recent conduct of the Supervisors of San
Francisco. Mr. Nye and his colleagues have made a powerful bid for popularity by devising a number of curious laws
calculated to inflict grinding torments upon the resident
Celestial.
THE CHINESE INVASION.
[From the St. Louis " Republican," June 10th.]
The San Francisco papers are still occasionally harrowing
up the souls of their readers by what they call the " Chinese
Invasion." They try to make it appear that Mongolian labor
is gradually undermining Caucasian industry, and will
eventually wreck them upon the shoals of skill and cheapness. In their efforts to prove this they put the Chinese in
the position of the superior race, whether they mean it or
not, and their own population inferior in enterprise, skill and
capacity to labor and endurance. The field is open to all,
and the Chinaman enters it with many disadvantages, and
no advantage over the native, unless it be his physical
and mental constitution. No one would admit the latter.    Now,   since the  world is made by the workers,   if
J APPENDIX.
the Chinese can beat, us at our own work, they are the
best world-builders, and their presence among us ought
to  be hailed with delight. .   We should not call that an
invasion   which   brings   such
immediate   blessings.        i
it be an invasion of cheap labor, we should repel it by doing
cheaper and better work. The Chinese have no franchise
which gives them a monopoly in any branch of industry.
What is the matter with the California workingmen, that
they cannot successfully compete with them ? Why raise the
cry of "invasion," standing on their native soil, with better
weapons in their hands and freer hearts in their bosoms than
the invaders can have ? It is all nonsense, and in the interests
of sloth and the old ruts of trade, that ought to have been
abandoned long ago. We must change our front in the
battle of life and progress, and instead of fighting the
Chinese as enemies, must take them along in our ranks, or
leave them behind in our advance.
It is strange, if American reproduction in California
cannot more than keep up with the Mongolian immigration;
and more than strange, if American enterprise and pluck
cannot turn themselves to better account than sitting down
in idleness, while the Chinese do all the Work and reap all
the profits.
JOHN  CHINAMAN AGAIN.
[From the New York " Tribune," June llth.]
Mayor Alvord, of San Francisco, has done a manly and
sensible thing, in refusing to approve two of the infamous
anti-Chinese ordinances lately passed by the San Francisco
Supervisors.
The Board seems to be organized in the interests of the
anti-Chinese party, and it lately passed, by a vote of seven
to three, an ordinance requiring that the hair of all persons
confined in the county jail be cropped close to the head. It
is too late to attempt to stay any tide of immigration by
special legislation, discriminating against race or color.
This, at least, is certain; what possible remedy for the evils
complained of yet remains, we cannot say. Probably, the
San Francisco Supervisors consider they have the right to
violate the plain principles of republicanism, as well as the
spirit of the treaty between the United States and China.
There are twelve members of their Board, eight of whom
may override the Mayor's veto of an ordinance which seven
voted to pass. < But this is not the way to cure the Chinese
evil. APPENDIX. 39
VETO OF THE CHINESE ORDINANCE.
[From the Los Angeles "Evening Express," June 13th.]
The veto message of Mayor Alvord is a clear and unanswerable argument against the legality of the proposed legislation, plainly showing that it not only contravenes the provisions of the existing treaties between this Government and
China, but is in violation of Sections 16 and 17 of the Act of
Congress, approved May 31st, 1870, known as the "Civil
Rights Act."
THE ANTI-CHINESE  ORDINANCES VETOED.
[From the Stockton "Daily Independent," June 11th.]
Mayor Alvord has vetoed this ordinance, (cutting the
hair,) and given his reasons for his course in a lengthy and
able message. It would appear that his reasoning would
be sufficient to convince all excepting those who are wilfully
blind of the utter injustice of such enactments.
THE  CHINESE QUESTION.
[From the Placerville "Mountain Democrat," June 14th.]
The sounder side of public opinion has about accepted the
conclusion, that-there are only two legitimate methods for opposing Chinese immigration. One is, by persistently petitioning Congress for a modification of the national treaties
and Jaws.which touch on this subject, in which connection it
would be wise to elect Representatives and Senators whose
views are in accord with public opinion on this question; the
other is, by a combination for individual action.
THE   "PIGTAIL ORDINANCE."
[From the Sacramento "Daily Bee."]
The Board of Supervisors has no right to enact penalties
not created by the Legislature; hence, a State Supreme Court
would declare the ordinance to be in violation of the State
Constitution.
THE MAYOR'S VETO.
[From the Contra Costa "Gazette," June 14th.]
We are grateful to Mayor Alvord for his vetoes of the
"Pigtail" and "wash-house" ordinances, which will go so
far toward relieving us from the shame and reproach of a deliberate breach of treaty obligations, and violation of the
principles of common justice and humanity. —
APPENDIX.
GOOD TO IMITATE.
that city.
[From the Salt Lake "Daily Journal," June 10th.]
We commend to our authorities the judicious example of
Mayor Alvord.    It is worthy of their deepest consideration.
MAYOR ALVORD'S VETO.
[From the Santa Barbara "Press," June 14th.]
The Mayor of San Francisco has earned the applause of
the nation for his manly and honorable action on the Chinese
question.
Well and bravely done, Mayor Alvord. The State and
the nation will set the seal of its warmest approbation upon
an act at once so timely and so manly.
MAYOR ALVORD VETOES THE PIGTAIL ORDINANCE/
[From the San Jose "Weekly Mercury," June 12, 1873.J
The Mayor takes a sensible view of the question, discussing it upon higher grounds than the Supervisors and
Chinese howlers of the city press are capable of appreciating.
[Chicago " Inter-Ocean," June 16.]
They have a brave man for Mayor of San Francisco. Influenced by the antipathy of the citizens to the influx of so
many Chinese, the Common Council recently passed a number of ordinances, the effect of which, if enforced, would be
to stop immigration, if not to drive the Chinese population
from the State. The Mayor promptly vetoed these ordinances.
[From the Oakland "Daily Transcript," June 11.]
All good citizens will sustain the Mayor in his rebuke of
the bigoted Board of Supervisors.
[From the Hartford "Courant," June 14.]
The Mayor of San Francisco has exhibited commendable
liberality in vetoing a recent ordinance of the Board of
Supervisors of that city, requiring the heads of Chinese
prisoners to be shaved of their queues, and another bill
making exorbitant and unjust restrictions upon Chinese
laundrymen. The city legislation has taken the form of
persecution, and the action of the Mayor, it is gratifying to
know, meets the  approbation of the respectable public of
[From the Boston '"Journal," June 11.]
The action of Mayor Alvord meets the approval  of the APPENDIX.
41
great majority'of the public, including even those opposed to
Chinese immigration, as the attempted municipal legislation
had taken the form of persecution.
[From the Albany " Evening Journal," June 10.]
The action of Mayor Alvord is right, and we are glad to
learn that it meets the approval of the great majority of the
San Francisco public, including even those opposed to
Chinese immigration, as the, attempted municipal legislation
had taken the form of downright persecution. The ordinance referred to would have disgraced a nation of barbarians.
[From the Gold Hill •' News," June 10.]
Mayor Alvord says, and rightly, that the whole question of
Chinese immigration is exclusively under the control of the
general Government, and no municipal corporation has any
right to interfere and prevent the carrying out of the Federal
policy relative to the Chinese.
A SENSIBLE MAYOR.
[From the New York "Herald," June 14.]
Our dispatches from San Francisco announce that the
Mayor of that city has performed the sensible act of vetoing
two silly ordinances recently passed by the Board of Super
visors.
*■   *
The Mayor rebukes the Supervisors
for putting needless indignities upon the Chinese, and it
appears that his course meets the warm approval of the
greater number of the citizens of San Francisco. When
prejudice runs into persecution, as it seems to have done in
California, it is time for honest and brave men, like Mayor
Alvord, to put a check upon it.
[From the'Washington " Chronicle," June 14.]
The authorities of San Francisco are proposing measures
of great severity for the suppression of the immigration of
the Chinese.
It appears from the report of the Chief of Police for the
fiscal year, 1873-4, that 152 arrests for violating the Cubic
Air ordinance were made in July, 1873, and 95 in August, *
and no more arrests were made during that fiscal year. It
can hardly be supposed, that there were no violations of
the ordinance, except in these two months. In the report of
the Chief of Police for the fiscal year 1874-5, no arrests are
specified as made for this cause.     If any were made, they
-**--
-•—^ *
42 APPENDIX.
are probably included under the head of "misdemeanors," of
which there were 806 arrests and 529 convictions. It is impossible to say how many of these, if any, were for violations
of this order, as all violations of orders are misdemeanors.
It is probable, however, that no arrests were made, as in the
report for the fiscal year 1875-6, I find the offense stated
under a heading "Lodging Law Violating," but no arrests
were made until April, 1876, which was after the passage of
the following Act of the Legislature:
On the 3d April, 1876, the Legislature of the State passed
an act entitled '' An act concerning lodging houses and sleeping apartments, within the limits of incorporated cities."
The first section applies to landlords and lessors. The
second section provides that any person, or persons found
sleeping or lodging; or who hires, or uses for the purpose of
sleeping in any room or apartment, which contains less than
five hundred (500) cubic feet of space in the clear, for each
person so occuping such room or apartment, shall be deemed
guilty of a misdemeanor, and shall, upon conviction, be punished by a fine of not less than ten (10), or more than (50)
dollars, or by both such fine and imprisonment.
The third section requires the Chief of Police to detail an
officer "to examine into any violation, and to arrest any
person guilty of any such violation."
By section four, hospitals, jails, etc., are excepted.
This act went into effect immediately.
Nothing further was done with respect to cutting off the
queues of Chinamen after the veto of the Mayor, until June,
1876, when the vetoed ordinance was introduced into the
Board of Supervisors as an amendment to another ordinance. It was introduced by Supervisor Gibbs. It did
not elicit much debate. It was stated by him and other
supervisors, that it was necessary to resort to this mode of
treatment, to enforce the ordinances by compelling the payment of fines imposed upon the Chinese, and it was passed for
that purpose by a vote of 10 to 2, on the 12th of June, 1876,
and signed by the Mayor, A. J. Bryant, on the 14th.
Mr. Gibbs, the author of the ordinance, appeared before
the Joint Special Committee of Congress, in response to
their request for the attendance of the officers of the
municipality, as one of the supervisors. In the course of
his testimony he said as follows:
"After coming into the Board of Supervisors, I found our
jails were very crowded, indeed. I also found that our
ordinances were not effective.    They were not enforced.    I APPENDIX.
43
called on the Chief of Police, and on the different officers,
and asked, as the Mayor was very strenuous in encieavoring
to enforce these ordinances, why they were not enforced ?
They told me it would be impossible to enforce them; that
they would have a thousand Chinamen in the jails if they
did; that our jails were overcrowded, and that there was a
large number of Chinamen. I went to the different jails
and saw what was going on, and I saw it was impossible,
unless something was done; I then drew up this ordinance,
(the queue-cutting ordinance.) I made it general, applying
both to whites and to the Chinese in reference to it, and it
was a sanitary measure solely, applying to both the whites
and to the Chinese.
" It had the desired effect. Then our Cubic Air ordinance
was enforced; the laws against Chinese gambling were enforced, and a large number were brought up. They would
be fined by the Police Court $10, for instance, or $20. The
fine was generally $10, and before they would pay their fines
they would go to prison and serve five days out, where they
had lodging. The Chief of Police informed me that they
did not care in winter, but would as leave board it out; that
they were accommodated there with better accommodations
than they had in their own dwellings, and they were fed
there. This had the effect of making them pay their fines and
relieve our jails."    (Congressional Report, pages 201—2.)
I have thus presented, in the language of the Supreme
Court of the United States, (Scott vs. Sandford, 19 Howard
407,) " the Legislation and Histories of the Times," not to
interpret or construe the words employed in the ordinance,
but to show " the class of persons" who were " intended to
be included in the general words used." As the Supreme
Court there say, the public history " displays it in a manner too plain to be mistaken." The Fourteenth Amendment
to the Constitution and the Civil Rights bill aim not at the
language of laws or measures, but at their object, purpose and
effect. •
B. S. BROOKS.
San Francisco, June 25, 1879.  — /71
hA

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