Open Collections

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For the Ninth Judicial Ciecuit,
In and for the District of California.
In   re TIBURCIO  PARROTT
On Habeas  Corpus.
Rights of  Chinese.
OPINIONS
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HALL McALLISTEE,
DELOS LAKE, and
T. I. BERGIN,
For Petitioner.
A. L. HART,
DAVID L. SMOOT,
CRITTENDEN THORNTON,
DAVIS LOUDERBACK and
ROBERT ASH,
For Respondent. f Circuit Court of the United States,
^     In and for the Ninth Judicial Circuit District of California,
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In be TIBURCIO PARROTT on Habeas Corpus.
1. Tbeaty-maktng Powee.    Under section 10, Article I, of the Constitution
of the United States, and section 2, Article II, the treaty-making
power has been surrendered by the States to the National Government,
and vested in the President and Senate of the United States.
2. Treaties, Effect of.   Under Article VI, the Constitution of the United
States and laws made in pursuance thereof, and treaties made ijnder
its authority, are the supreme law of the land; and the judges in
every State, both State and National, are bound thereby, anything in
the Constitution or laws of any State to the contrary notwithstanding.
3. Chinese Treaty within Tbeaty-making Power. The provisions of Articles V and VI of the treaty with China of June, 18,1868, recognizing
the right of the citizens of China to emigrate to the United States for
purposes of curiosity, trade, and permanent residence, and providing
that Chinese subjects residing in the United States shall enjoy the
same privileges, immunities, and exemptions in respect to travel and
residence as may be enjoyed by the citizens or subjects of the most
favored nations (16 Stat. 740), are within the treaty-making power
conferred by the Coustitution upon the President and Senate, and are
valid, and constitute a part of the supreme law of the land.
4. Constitution of California—Treaty. Any provision of the Constitution or laws of California in conflict with the treaty with China is void.
5. Section 2 of Article XIX of the Constitution of Califobnia, providing that no corporation formed under the laws of the State shall, directly or indirectly, in any capacity, employ any Chinese or Mongolian,
and requiring the Legislature to pass such laws as may be necessary to
enforce the provision, is in conflict with Articles V and VI of said
treaty with China, and is void.
6. Act making it an Offense to Employ Chinese. The Act of February
13, 1880, to enforce said article of the Constitution making it an offense for any officer, director, agent, etc., of a corporation to employ
Chinese, violates the treaty with China, and is void.
7. The Privileges and Immunities, which, under the treaty, the Chinese
are entitled to enjoy to the same extent as enjoyed by the subjects of
the most favored nation, are all those rights which are fundamental,
and of right belong to citizens of all free governments; and among
them is the right to labor, and to pursue any lawful employment in a
lawful manner.
8. Labor—Pbopebty. Property is everything which has an exchangeable'
value. Labor is property, and the right to make it available is next in
importance to the right to life and liberty.
9. "Fourteenth Amendment to National Constitution.    The provisions of
Article XIX of the  Constitution of California,  and said Act of the
Legislature   passed   to  enforce  it,  prohibiting   the
Chinese,   are also in conflict with the  provisions of
Amendment to the Constitution of the United States,
that ground.
10. Same. Said provisions are in conflict with that part of the said Fourteenth Amendment which provides that no State shall deprive any
person of life, liberty, or property, without due process of law;
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employment of
the Fourteenth
and are void on 11. Same.    They are also in conflict with that portion of said amendment
which provides that no State shall, deprive any person within its jurisdiction of the equal protection af the laws.
12. Chinese ob Mongolians residing within the jurisdiction of California
are " persons " within the meaning of the term as used in the said
Fourteenth Amendment to the Constitution.
13. Sections 1977 and 1978 of the Revised Statutes of the United States
were passed in pursuance of said Fourteenth Amendment, and to give
it effect; and said constitutional and statutory provisions of the State
of California are in conflict with said provisions of the Revised
Statutes.
14. Disceiminating Legislation by a State  against  any class of persons,
or against persons of any particular race or nation, in whatever form
it may be expressed, deprives such class of persons, or persons of
such particular race or nation, of the equal protection of the laws,
and is prohibited by the Fourteenth Amendment.
15. This Inhibition of the Foubteenth Amendment upon a 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.
16. Poweb over Corporations.    "Where the State legislation, under its re
served power to alter and repeal charters of corporations, comes in
conflict with valid treaty stipulations, and with the Constitution of the
United States, it is void.
17. Same. Where the policy of State legislation, under its reserved power to
alter or repeal charters of corporations, does not have in view the relations of the corporations to the State as the object to be effected, but
seeks to reach the Chinese and exclude them from a large field
of labor, the ultimate object being to drive them from the State, in
violation of their rights under the Constitution and treaty stipulations—
the discriminating legislation being only the means by which the end
is to be attained—the end sought is a violation of the Constitution and
treaty, and the legislation as such is void.
18. Unlawful Object.    Where the object sought is unlawful, it is unlawful
to use any means to accomplish the object.
19. Unconstitutional Act.   That which cannot be constitutionally done di
rectly, cannot be done indirectly,
20. Section 31, Aeticle IV, of  the  Constitution of  Califobnia, which
provides that all general laws passed for the formation of private corporations may be altered from time to time, or repealed, does not authorize the Legislature to forbid the employment by corporations of
persons of a particular class or nationality.—(Hoffman, D. J.)
21. Consequences of a Pebsistent Violation  of  Teeaties  by a State
Discussed, and attention called to the stringent criminal laws passed
by Congress to enforce the Fourteenth Amendment.
Before Sawyeb, Circuit Judge, and Hoffman, District
Judge.
Hall McAllister, Delos Lake, and T. 1. Bergin, for petitioner.
A. L. Hart, Attorney-General; David L. Smoot, State Dis-
tric Attorney; Crittenden Thornton, Davis Louderback, and
Robert Ash, for respondent.
[The judgment of the Court was announced by Sawyer, Circuit Judge,
who stated that on a subsequent day he would file his opinion. (For opinion,
see p. 19.)    Hoffman, District Judge, then delivered the following opinion.] Hoffman, District Judge: The return in this case shows
that the petitioner is imprisoned for an alleged violation of
an Act of the Legislature of this State, approved February
13, 1880.
Article XIX, section 2, of the recently adopted Constitution of this State is as follows:
■ s No corporation now existing, or hereafter formed under
the laws of this State, shall, after the adoption of this Constitution, employ, directly or indirectly, in any capacity, any
Chinese or Mongolians. The Legislature shall pass such
laws as shall be necessary to enforce this provision."
In pursuance of this mandate the Legislature enacted the
law under which the petitioner has been arrested. It is as
follows:
"An Act to amend the Penal Code by adding two new sections
thereto, to be known as Sections 178 and 179, prohibiting the employment of Chinese by corporations.
I * The People of the State of California, represented in Senate
and Assembly, do enact as follows:
" Section 1. A new section is hereby added to the Penal
Code, to be numbered Section 178.
1 Sec. 178. Any officer, director, manager, member, stockholder, clerk, agent, servant, attorney, employee, assignee,
or contractor of any corporation now existing, or hereafter
formed under the laws of this State, who shall employ in
any manner or capacity, upon any work or business of such
corporation, any Chinese or Mongolian, is guilty of a misdemeanor, and. is punishable by a fine of not less than $100
nor more than $1,000, or by imprisonment in the county jail
of not less than 50 nor more than 500 hundred days, or by
both such fine and imprisonment; provided, that no director
of a corporation shall be deemed guilty under this section
who refuses to assent to such employment, and has such dissent recorded in the minutes of the Board of Directors.
•'1. Every person who, having been convicted for violating
the provisions of this section, commits any subsequent violation thereof after such conviction, is punishable as follows:
" 2. For each subsequent conviction such person shall be
fined not less than $500 nor more than $5,000, or by imprisonment not less than 200 days nor more than two years,
or by both such fine and imprisonment.
•'Sec. 2. A new section is hereby added to the Penal Code,
to be known as Section 179, to read as follows: " Sec. 179. Any corporation now existing, or hereafter to
be formed under the laws of this State, that shall employ,
directly or indirectly, in any capacity, any Chinese or Mongolian, shall be guilty of a misdemeanor, and, upon conviction thereof, shall, for the first offense, be fined not less than
$500 nor more than $5,000, and upon the second conviction,
shall, in addition to said penalty, forfeit its charter and franchise and all its corporate rights and privileges, and it shall
be the duty of the Attorney-General to take the necessary
steps to enforce such forfeiture.
"This Act shall take effect immediately."
It is claimed on behalf of the petitioner that this provision
of the Constitution, and the law passed in pursuance of it,
are void because in violation of the Fourteenth Amendment
of the Constitution of the United States, and the law passed
to enforce its provisions known as the Civil Rights law;^ and
also of the treaty between the United States and the Chinese
Empire, commonly called the Burlingame Treaty.
The Fourteenth Amendment enacts that "no State shall
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Civil Rights Bill provides that all persons within the
jurisdiction of the United States shall have the same rights
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- 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 to no other.   (R. S. 1977.)
Section 2164 provides that 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 thereto
from any other foreign country.
Article V of the Burlingame Treaty recognizes " the mutual advantage of the free immigration and emigration of the
citizens and subjects " (of the United States and of the Emperor of China) " respectively, from the one country to the
other for purposes of curiosity, or trade, or as permanent
residents." 5
Article VI provides that " reciprocally, Chinese subjects
visiting or residing in the United States shall enjoy the same
privileges, immunities, and exemptions in respect to travel,
or residence, as may there be enjoyed by the citizens or subjects of the most favored nation."
It was not disputed by the Attorney-General of California
that these provisions of the treaty are within the treaty-
making power of the United States, nor that the law under
which the petitioner has been arrested, if in violation of
those provisions, or those of the Fourteenth Amendment, or
of the Civil Rights Bill, is void, anything in the Constitution
of the State to the contrary notwithstanding.
But it is urged that the article of the Constitution of this
State which permits corporations to be formed under general
laws, reserves the right to repeal, alter, or amend those laws
at the discretion of the Legislature; that their repeal would
at once put an end to the corporate existence of the corporations, and that the right to put an end to their existence involves the right to prescribe the conditions upon which their
existence shall be continued; that this right is theoretically
and practically without limit, and may be exercised by imr
posing upon corporations, laws for the conduct of their business, and restrictions upon the use and enjoyment of their
property, which would be unconstitutional and void if applied
to private persons, and which may have the effect to defeat
the object of the association, or to impair or even destroy the
beneficial use of its property.
The State may, therefore, in the exercise of this reserved
power, prescribe what persons may be employed by corporations organized under its laws, their number, their nationality, perhaps even their creed. It may determine what shall
be their age or complexion, their height or their weight, the
number of hours they shall work in a day, or the number of
days in a week, and the rate of their wages.
These illustrations may seem extravagant, but they were
all either recognized by counsel as within the scope of the
reserved power, or else they are legitimate examples of the
mode in which the reserved power, as claimed, might be exercised. For all such legislation the only remedy of the corporations is to disincorporate and cease to exist. 6
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Such being the reserved power of the State over the crea-**
tures of its laws, it is urged that the treaty was not intended,
and cannot be construed, to impair that 'right, any more than
it could be deemed to abridge the right to enact laws in the
interest of the public health, safety, or morals, usually known
as police laws, or to regulate the making of contracts by providing who shall be incompetent to make them, as infants,
married women, and the like.
When we consider the vast number of corporations which
have been formed under the laws of this State, the claim thus
put forth is well fitted to startle and alarm. It amounts in
effect to a declaration that the corporations formed under the
laws of this State and their stockholders, hold their property*
so far as its beneficial use and enjoyment are concerned, ,at
the mercy of the Legislature, and that rights which in the
case of private individuals would be inviolable, have for them
no existence.
The circumstances which led to the insertion in charters
of incorporation of the reservation in question are well
known.
The Supreme Court having decided that a charter of a
literary institution was a contract, and therefore protected by
the provision in the Constitution which forbids the States to
make any law impairing the obligation of contracts, the reservation clause was introduced in order to withdraw the contract from the operation of the constitutional inhibition, and
to retain to the authority which created the corporation the
right to resume the granted powers, or to modify them, as
the public interests might require.
It may confidently be affirmed that it was not intended to
authorize the exercise of the unrestrained power over the
operations of corporations, and the use of their property, contended for at the bar.
The adjudged cases, though they contain no precise definition of the extent and limits of this power applicable to
all questions which may arise, are nevertheless full of instruction on the subject.
In The sinking fund cases (9 Otto, 720), Mr. Chief Justice
Waite, delivering the opinion of the Court, says: "That this power has a limit, no one can doubt. All agree that it cannot be used to take away property already acquired under
the operation of the charter, or to deprive the corporation of
the fruits actually reduced to possession of contracts lawfully
made, but, as was said by this Court, through Mr. Justice
Clifford, in Miller vs. The State (15 Wall. 498), 'it may safely
be affirmed that the reserved power may be exercised to almost any extent to carry into effect the original purposes of
the grant, or to protect the rights of stockholders and of
creditors, and for the proper' disposition of its assets;' and
again,*in Holyoke Company vs. Lyman (Id. 519), 'to protect
the rights of the public and of the corporators, or to promote the due administration of the affairs of a corporation.'
Mr. Justice Field, also speaking for the Court, was even
more explicit when, in Tomlinson vs. Jessup (Id. 459), he said,
* the reservation affects the entire relation between the State
and the corporation, and places under legislative control all
rigMs and privileges, derived by its charter directly from the
State.' And again, as late as Railroad Company vs. Maine
(96 U. S. 510), 'by the reservation the State retained the
power to alter it (the charter) in all particulars constituting
the grant to the new company formed under it of corporate
rights, privileges, and immunities.' Mr. Justice Swayne, in
Shields vs. Ohio (95 U. S. 324), says, by way of limitation,
'The alterations must be reasonable; they must be made in
good faith, and be consistent with the objectf and scope of
the Act of incorporation—sheer oppression and wrong cannot be inflicted under the guise of amendment or alteration." In his dissenting opinion in this case, Mr. Justice
Field reproduces and explains the language used by him in
Tomlinson vs. Jessup, and Railroad Company vs. Maine. He
says: "The object of a reservation of this kind in Acts of
incorporation, is to insure to Government control over corporate franchises rights and privileges which, in its sovereign
or legislative capacity, it may call into existence, not to interfere with contracts which the corporation, created by it,
may make; such is the purport of our language in Tomlinson
vs. Jessup, where we state the object of the reservation to be
' to prevent a grant of cobpoeate rights and privileges in a 8
form which wiU preclude legislative interference with their
exercise, if the public interest should at any time require
such interference;' and ' that the reservation affects the entire relation between the State and the corporation, and
places under legislative control all rights, privileges, and immunities derived by its charter directly from the State' (5 Wall.
354). The same thing we repeated, with greater distinctness, in R. R. Company vs. Maine, where we said that ' by
the reservation the State retained the power to alter the Act
incorporating the company in all particulars constituting the
grant to it-of corporate rights, privileges, and immunities? and
that ' the existence of the corporation and its franchises and
immunities, derived directly from the State, were thus kept
under its control.' But we added, ' that the rights and interests acquired by the company, not constituting a part of the
contract of incorporation, stand upon a different footing.' (96
U. S. 499."
(The italics are the learned Justice's own.)
In Commonwealth vs. Essex Co. (13 Gray, Mass. 239), Mr.
J. Shaw says: "It seems to us that this power must have
some limit, though it is difficult to define it. * * .* * *
Perhaps from these extreme cases—for extreme cases are
allowable to test a legal principle—the rule to be extracted is
this: that where, under a power in a charter, rights have been
acquired and become vested, no amendment or alteration of
the charter can take away the property or rights which have
become vested under a legitimate exereise of the powers
granted" (p. 253).
"This rule," says Mr. J. Strong, "has been recognized
ever since."   (99 U. S. 742.)
The language of Mr. J. Story in the Dartmouth College
case, which, as b3fore remarked, first led to the general insertion of the reservation clause in charters of incorporation
clearly indicates its object.
"When," he observes, "a private corporation is thus
created by the charter of the Crown, it is subject to no other
control on the part of the Crown than what is expressly or
implicitly reserved by the charter itself. Unless a power be
reserved for this purpose, the Crown cannot, in virtue of its prerogative, alter or amend the charter, or divest the corporation of any of its franchises, or add to them, or augment or
diminish the number of the trustees, or remove any of the
members, or change or control the administration of the
funds, or compel the corporation to receive a new corpora-
ture."    (4 Wheat. 675.)
" Probably," Mr. J. Bradley observes, " in view of the
somewhat unexpected application of the clause " (forbidding
the States to impair the obligation of contracts) '' operating as
it did to deprive the States of nearly all legislative control
over corporations of their own creation, the Courts have
given a liberal construction to the power to alter, amend,
and repeal a charter, and have sustained some acts of legislation made under such a reservation which are at least questionable."    (99 Otto, 748.)
In Miller vs. The State (15 Wall. 498), the Supreme Court
says: "Power to legislate founded upon such a reservation
in a charter to a private corporation is certainly not without
limit, and it may well be admitted that it cannot be exercised
to take away or destroy rights acquired by virtue of such
charter, and which by a legitimate use of the powers granted
have become vested in the corporation; but it may be safely
affirmed that the reserved power may be exercised to almost
any extent to carry into effect the original purposes of the
grant, or to secure the due administration of its affairs, so as
to protect the rights of* stockholders and of creditors, and for
the proper disposition of the assets. Such a reservation, it
is held, will not warrant the Legislature in passing laws to
change the control of an institution from one religious sect
to another, or to divert the fund of the donors to any new
use inconsistent with the intent and purpose of the charter,
or to compel subscribers to the stock, whose subscription is conditional, to waive any of the conditions of their
contract." (State vs. Adams, 44 Missouri, 570; Zabriskievs.
R. R. Co., 3 C. E. Green, 180 ; R. R. Co. vs. Veazie, 38
Maine, 581; Sage vs. Dillard, 15 B. Monroe, 359.) These
citations sufficiently indicate the nature, object, and, to a
certain degree, the extent of the powers reserved in the
clause in question; and although they do not define their
—
J 10
limits in every direction, they lay down certain ne plus ultra
boundaries which the Legislature may not pass.
Over all the rights, privileges, and immunities conferred
by the • charter upon the corporation, and which are derived
from the charter, the Legislature has control. But, in the
language of the Supreme Court, "the rights and interests
acquired by the company, and not constituting a part of the
contract of corporation, stand upon a different footing." (96
Otto, 499.)
The right to use a corporate name and seal, the right,
under that name, to sue and be sued, to acquire property and
to contract, are rights which owe their existence to the
charter.
But when a contract has been made, or property acquired
by a lawful exercise of the granted powers, the contract is as
inviolable, and the right of property with everything incidental to that right as sacred, as in the case of natural persons.
It is not merely the title to the property that is protected
from legislative confiscation, but that which gives value to
all property, the right to its lawful use and enjoyment.
It would be a "mockery, a delusion, and a snare" to say
to a corporation: "The title to the property you have lawfully
acquired we may not disturb, but we may prescribe such
conditions as to its use, as will utterly destroy its beneficial
value."
It need hardly be said that no reference is here intended
to the power of the State to enact police laws—that is, laws
to promote the health, safety, or morals of the public. To
such laws corporations are amenable to the same extent as
natural persons and no further.
The law in question does not affect to be a police law. Its
validity, if applied to natural persons, was not contended for
at the bar. ■ The authority to pass it was sought to be derived exclusively from the reserved power over corporations.
It forbids the employment of Chinese. If the power to
pass it exists, it might equally well have forbidden the employment of Irish, or Germans, or Americans, or persons of
color,. or it might have required the employment of any of
these classes of persons to the exclusion of the rest. 11
It might, as avowed at the bar, have prescribed a rate of
wages, hours of work, or other conditions destructive of the
profitable use of the corporate property.
Such an exercise of legislative power can only be maintained on the ground that stockholders of corporations have
no rights which the Legislature is bound to respect.
Behind the artificial or ideal being created by the Statute
and called a corporation, are the corporators—natural persons who have conveyed their property to the corporation, or
contributed to it their money, and received as evidence of
their interest, shares in its capital stock. The corporation,
though it holds the title, is the trustee, agent, and representative of the shareholders, who are the real owners. And it
seems to me that their right to use and enjoy their property
is as secure under constitutional guarantees as are the
rights of private persons to the property they may own.
That the law in question, substantially and not merely theoretically, violates the constitutional rights of the owners of
corporate property, can readily be shown.
Already several corporations representing investments of
great magnitude submitting to its commands, have ceased
their operations. It is probable that if the law be declared
valid, many more will be forced to follow their example.
It applies to all corporations formed under the laws of
this State.
If its provisions be enforced, a bank or a railroad company will lose the right to employ a Chinese interpreter to
enable it to communicate with Chinese with whom it
does business.
A hospital association would be unable to employ a
Chinese servant to make known, or to minister to, the wants
of a Chinese patient; and even a society for the conversion
of the heathen, would not be allowed to employ a Chinese
convert to interpret the Gospel to Chinese neophytes.
The language of the Supreme Court in Shields vs. Ohio (95
U. S. 324) has already been quoted:
"The alterations must be reasonable, they must be made
in good faith, and consistent with the object and scope of
the Act of incorporation." 12
" Sheer oppression and wrong cannot be inflicted under
the guise of amendment or alteration."
Can it be pretended that this law, of the effect of which I
have given these examples, is reasonable as between the State
and the corporations, without regard to the treaty rights of
Chinese residents.
Can it be said to be in good faith—that is, in the fair and
just exercise of the reserved power to regulate corporations
for the protection of the stockholders, their creditors, and
the general public ?
Is it not rather an attempt, '' under the guise of amendment or alteration," to attain quite a different, and as I shall
presently show, an unconstitutional object, viz: to drive the
Chinese from the State, by preventing them from laboring
for their livelihood ? I apprehend that, to these questions,
but one candid answer can be given.
I am therefore of opinion that, irrespective of the rights
secured to the Chinese by the treaty, the law is void, as not
being a "reasonable," bona fide, or constitutional exercise
of the power to alter and amend the general laws under
which corporations in this State have been formed. That
it would be equally invalid if the proscribed class had been
Irish, Germans, or Americans.
That the corporations have a constitutional right to utilize
their property, by employing such laborers as they choose,
and on such wages as may be mutually agreed upon.
That they are not compelled to shelter themselves behind
the treaty right of the Chinese, to reside here, to labor for
their living, and accept employment when offered; but they
may stand firmly on their own right to employ laborers of
their choosing, and on such terms as may be agreed upon,
subject only to such police laws as the State may enact with
respect to them, in common with private individuals.
In the foregoing observations I have treated the question
discussed as if the reservation had been found in a special
charter, by which the corporation was created and its franchises conferred.
I have endeavored to show that such a reservation cannot
be construed to authorize the Legislature to impair the obli- 13
gation of any contract lawfully made by a corporation, or to
deprive the corporation of any vested property or rights of
property lawfully acquired.
But in this State the Constitution forbids the Legislature
to create private corporations by special act.
They may be "formed" (i. e., by private persons), "under
general laws." All persons who choose to avail themselves of
the provisions of these laws may acquire .the franchises which
they offer.
These general laios may be repealed or altered.
What would be the effect upon the existence or rights of corporations already formed, of the repeal or alteration of these
laws, it is not necessary here to inquire.
It is sufficient to say that the legislative power cannot be
greater under such a provision than under a reservation of a
power to amend or repeal contained in a charter, by which a
corporation is created and its franchises conferred.
II. But even, if the reserved power of the State over
corporations were as extensive as is claimed, its exercise in
the manner attempted in this case would be invalid, because
in conflict with the treaty.
"In every such case" (where the Federal Government
has acted), " the Act of Congress,  or the treaty is supreme,
and the laws of the State,   though enacted in the exercise of
powers not controverted,  must yield to it."    (Per Mr. C. J.
Marshall, in Cibbons vs. Ogden, 9 Wheat. 211.)
The principle thus enunciated by the great Chief Justice
has never since been disputed. (Henderson vs. Mayor of New
York, 92 U. S. 272; R. R. Company vs. Husen, 95 U. S. 472.)
The article of the Constitution of this State under which
the law under consideration was enacted is as follows:
ARTICLE XIX.
CHINESE.
Section 1. " The Legislature shall prescribe all necessary
regulations for the protection of the State, and the counties,
cities, and towns thereof from the burdens and evils arising
from the presence of aliens who are or may become vagrants,
paupers, mendicants, criminals, or invalids, afflicted with
contagious or infectious diseases, and from aliens otherwise 14
dangerous or detrimental to the well-being or peace of the
State, and to impose conditions upon tohich such persons may
reside in the State, and to provide the means and mode of their
■removal from the State upon failure orrefusalto comply with
such conditions; provided, that nothing contained in this section shall be construed to impair or limit the power of the
Legislature to pass such police laws or other regulations as
it may deem necessary.
Sec. 2. "No corporation now existing, or hereafter formed
under the laws of this State, shall, after the adoption of this
Constitution, employ, directly or indirectly, in any capacity, any
Chinese or Mongolians. The Legislature shall pass such laws
as may be necessary to enforce this provision.
Sec. 3. "No Chinese shall be employed on any State,
county, municipal, or other public work, except in punishment for crime.
Sec. 4. " The presence of foreigners ineligible to become
citizens is declared to be dangerous to the well-being of this
State, and the Legislature shall discourage their immigration by all the means within its power   ■****."
The end proposed to be attained by this extraordinary
article is clearly, and even ostentatiously avowed.
Its title proclaims that it is directed against the Chinese.
It forbids their employment by any but private individuals,
and when through the operation of the laws they shaU have
become, or be liable to become vagrants, paupers, mendicants, or criminals, the Legislature is directed to provide for
their removal from the State, if they fail to comply with such
conditions as it may prescribe for their continued residence.
The framers of the article do not seem to have relied upon
the efficacy of the provisions imposing such extensive restrictions upon the rights of the proscribed race to labor for
their living, to reduce them to the condition of vagrants,
paupers, mendicants, or criminals, or persons who "may
become " such. The Legislature is directed to impose conditions of residence, and provide for the removal of "aliens
otherwise dangerous or detrimental to the well-being or peace of
the State,'' and lest any doubt or hesitation should be felt as to
the propriety of including wealthy and respectable Chinese in
this class, the fourth section declares "the presence of for- 15
eigners ineligible to become citizens of the United State " (i.
e., the Chinese) to be "dangerous to the well-being of the
State." And the Legislature is directed to "discourage
their immigration by all the means within its power."
Would it be believed possible, if the fact did not so sternly
confront us, that such legislation as this could be directed
against a race whose right freely to emigrate to this country,
and reside here with all " the privileges, immunities, and
exemptions of the most favored nation," has been recognized
and guaranteed by a solemn treaty of the United States,
which n'ot only engages the honor of the National Government, but is by the very terms of the Constitution the supreme law of the land ?
The Legislature has not yet attempted to carry into effect
the mandate of the first section by imposing conditions upon
which aliens who are or may become vagrants, paupers, mendicants, or criminals, may reside in the State, or by providing for their removal.
Its action thus far has been limited to forbidding the employment of Chinese, directly or indirectly, by any corporation
formed under the laws of this State. The validity of this law
is the only question presented for determination in the present case.
In considering this question we are at liberty to look not
merely to the language of the law, but to its effect and purpose.
" In whatever language a statute may be framed, its purpose may be determined by its natural and reasonable
effect; and if it is apparent that the object of this statute, as
judged by that criterion, is to compel the owners of vessels
to pay a sum of money for every passenger brought by them
from a foreign shore and landed at the port of New York, it is
as much a tax on passengers if collected from them, or a tax on
the vessel or owners for the exercise of the right of landing
their passengers in that city, as was the statute held void in
the Passenger cases." (Henderson vs. The Mayor, etc., 92
U. S. R. 268.)
" If, as we have endeavored to show, in the opinion in the
preceding cases, we are at liberty to look to the effect of a
statute for the test of its constitutionality, the argument need
go no further." (Chy Lung vs. Freeman et al., 92 U. S. R.
279.)
i 16
If the effect and purpose of the law be to accomplish an
unconstitutional object, the fact that it is passed in the pretended exercise of the police power, or a power to regulate
corporations, will not save it. If a law of the State forbidding the Chinese to labor for a living, or requiring them to
obtain a license for doing so, would have been plainly in,violation of the Constitution and treaty, the State cannot attain
the same end by addressing its prohibition to corporations.
In Cummingsvs. The State of Missouri, Mr. J. Field, speaking for the Court, observes: "Now, as the State, had she
attempted the course supposed, would have failed, it must
follow that any other mode of producing the same result must
equally fail. The provisions of the Federal Constitution intended to secure the liberty of the citizen cannot be evaded
by the form in which the power of the State is exerted. If
this were not so—if that which cannot be accomplished by
means looking directly to the end can be accomplished by
indirect means—the inhibition may be evaded at pleasure.
No kind of oppression can be named against which the
framers of the Constitution intended to guard, which may
not be effected."    (4 Wall. 320.)
The application of these pregnant words to the case at bar
is obvious.
Few will have the hardihood to deny the purpose and effect
of the article of the Constitution which has been cited. It
is in open and seemingly contemptuous violation of the provisions of the treaty, which give to the Chinese the right to
reside here with all the privileges, immunities, and exemptions
of the most favored nation.
It is in fact but one and the latest of a series of enactments
designed to accomplish the same end.
The attempt to impose a special license tax upon Chinese
for the privilege of mining, the attempt to subject them to
peculiar and exceptional punishments commonly known as
the Queue Ordinance, have been frustrated by the judgments
of this Court. The attempt to extort a bond from shipowners
as a condition of being permitted to land those whom a Commissioner of Immigration might choose to consider as coming
within certain enumerated classes, has received the emphatic 17
and indignant condemnation of the Supreme Court. (Chy
Lung vs. Freeman, 92 U. S. R. 275.)
But the question which now concerns us is: Does the law
under consideration impair or destroy the treaty rights of
Chinese residents ? For it may be a part of a system obviously designed to effect that purpose, and yet not of itself
be productive of that result.
Its practical operation and effect must, therefore, be adverted to.
The advantages of combining capital, and restricting individual liability by the formation of corporations, have, from
the organization of this State, been recognized by its laws.
That method, now universal throughout the civilized world in
the prosecution of great enterprises, has in this State received an unprecedented development. Its laws permit the
formation of corporations for any purpose for which individuals may lawfully associate, and the corporations already
formed cover almost every field of human activity. The
number of certificates* on file in the Clerk's office of this
countv alone was stated at the hearing to be 8397. The
number in the entire State is of course far greater.
They represent a very large proportion of the capital and
industry of the State.
The employment of Chinese, directly or indirectly, in any
capacity by any of these corporations is prohibited by the
law.
No enumeration would, I think, be attempted of the privileges, immunities, and exemptions of the most favored nation, or even of man in civilized society, which would exclude the right to labor for a living.
It is as inviolable as the right of property, for property is
the offspring of labor.
It is as sacred as the right to^life, for life is taken if the
means whereby we live be taken.
Had the labor of the Irish or Germans been similarly proscribed, the legislation would have encountered a storm of
just indignation. The right of persons of those or other nationalities to support themselves by their labor stands on no
other or higher  ground  than of the Chinese.    The latter 18
have even the additional advantage afforded by the express
and solemn pledge of the nation.
That the unrestricted immigration of the Chinese to this
country is a great and growing evil, that it presses with
much severity on the laboring classes, and that if allowed to
continue in numbers bearing any considerable proportion to
that of the teeming population of the Chinese Empire, it will
be a menace to our peace and even to our civilization, is an
opinion entertained by most thoughtful persons.
The demand, therefore, that the Treaty shall be rescinded
or modified is reasonable and legitimate. But while that
Treaty exists, the Chinese have the same rights of immigration and residence as are possessed by any other foreigners.
Those rights it is the duty of the courts to maintain, and of
the Government to enforce.
The declaration that "the Chinese must go, peaceably or
forcibly," is an insolent contempt of national obligations and
an audacious defiance of national authority. Before it can
be carried into effect by force, the authority of the United
States must first be not only defied, but resisted and overcome.
The attempt to effect this object by violence will be
crushed by the power of the Government.
The attempt to attain the same object indirectly by legislation will be met with equal firmness by the courts; no
matter whether it assumes the guise of an exercise of the
police power, or of the power to regulate corporations, or of
any other power reserved by the State; and no matter whether
it takes the form of a constitutional provision, legislative
enactment, or municipal ordinance.
I have considered this case at much greater length than the
difficulty of the questions involved required.
But I have thought that their great importance, and the
temper of the public with regard to them, demanded that no
pains should be spared to demonstrate the'utter invalidity of
this law. 19
Sawyeb, Circuit Judge: The Constitution of California,
adopted in 1879, provides that: "No corporation now existing, or hereafter formed, under the laws of this State, shall,
after the adoption of this Constitution, employ, directly or
indirectly, in any capacity, any Chinese or Mongolian. The
Legislature shall pass such laws as may be necessary to enforce this provision."    (Article XIX, section 2.)
In obedience to this mandate of the Constitution, the Legislature, on February 13, 1880, passed an Act entitled "An
Act to amend the Penal Code by adding two new sections
thereto, to be known as sections 178 and 179, prohibiting the
employment of Chinese by corporations," the first section of
which statute reads as follows:
" Section 1. A new section is hereby added to the Penal
Code, to be numbered section 178.
"Sec. 178. Any officer, director, manager, member,
stockholder, clerk, agent, servant, attorney, employee, assignee, or contractor of any corporation now existing, or hereafter formed, under the laws of this State, who shall employ,
in any manner or capacity, upon any work or business of
such corporation, any Chinese or Mongolian, is guilty of a
misdemeanor, and is punishable by a fine of not less than
$100 nor more than $1,000, or by imprisonment in the
county jail of not less than 50 nor more than 500 days, or by
both such fine and imprisonment; provided, that no director
of a corporation shall be deemed guilty, under this section,
who refuses to assent to such employment, and has such dissent recorded in the minutes of the Board of Directors.
"1. Every person who, having been convicted for violating the provisions of this section, commits any subsequent
violation thereof after such conviction, is punishable as follows:
"2. For each subsequent conviction, such person shall be
fined not less than five hundred nor more than five thousand
dollars, or by imprisonment not less than two hundred and
fifty days nor more than two years, or by both such fine and
imprisonment."
The petitioner is President and Director of the Sulphur
Bank Quicksilver Mining Company, a corporation organized
under the laws of California before the adoption of the present Constitution, but still doing business within the State.
Having been arrested and held to answer before the proper
) 20
State Court, upon a complaint duly made, setting out in due
form the offense of employing in the business of said corporation certain Chinese citizens of the Mongolian race,
created by said Act, he sued out a writ of habeas corpus, which,
having been returned, he asks to be discharged, on the
ground that said provisions of the Constitution, and Act
passed in pursuance thereof, are void, as being adopted and
passed in violation of the provisions of the treaty of the
United States with the Chinese Empire, commonly called the
"Burlingame Treaty," and of the Fourteenth Amendment to
the Constitution of the United States, and of the Acts of
Congress passed.to give effect to said amendment. The
question in this case, therefore, is as to the validity of said
Constitutional provision and said Act. Article I, section 10,
of the Constitution of the United States, provides that "no
State shall enter into any treaty, alliance, or confederation."
Article II, section 2, that the President "shall have power,
by and with the advice and consent of the Senate, to make
treaties, provided two-thirds of the Senators present shall
concur;" and Article VI that "This Constitution, and the
laws of the United States which shall be made in pursuance
thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law
of the land, and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwitlistanding." There can be no mistaking the
significance or effect of these plain, concise, emphatic provisions. The States have surrendered the treaty-making
power to the General Government, and vested it in the Pres
ident and Senate; and when duly exercised by the President
and Senate, the treaty resulting is the supreme law of the
land, to which not only State laws but State Constitutions are
a in express terms subordinated. Soon after the adoption of
* this Constitution, the Supreme Court of the United States
had occasion to consider this provision, making treaties the
supreme law of the land, in Ware vs. Hylton, and Mr. Justice
Chase, speaking of its effect, said: "A treaty cannot be the
supreme law of the land—that is, of all the United States—
if any Act of a State Legislature can stand in its way.    If the
& 21
Constitution of a State (which is the fundamental law of the
State, and paramount to its Legislature) must give way to a
treaty and fall before it, can it be questioned whether the
less power, an Act of the State Legislature, must not be prostrate ? It is the declared will of the people of the United
States that every treaty made by the authority of the United
States shall be superior to the Constitution and laws of any
individual State, and their will alone is to decide. If a law
of a State, contrary to a treaty, is not void, but voidable only
by repeal, or nullification by a State Legislature, this certain
consequence follows: that the will of a small part of the United
States mav control or defeat the will of the whole."   (3 Dall.
**■' \
236.) Again: "It is the declared duty of ihe State Judges to
determine any constitution or laws of any State contrary to that
treaty, or any other made under the authority of the United
States, null and void. National or Federal Judges are bound
by duty and oath to the same concfttctf." (lb. 237.) And again:
" It is asked, did the fourth article intend to annul a law of
the State, and destroy rights under it ? I answer, that the
fourth article did intend to destroy all lawful impediments,
past and future; and that the law of Virginia, and the payment under it, is a lawful impediment, and would bar a recovery, if not destroyed by this article of the treaty. * * *
I have already proved that a treaty can totally annihilate any
part of the Constitution of any of the individual States that
is contrary to a treaty."    (lb. 242-3.)
The case of Hauenstein vs. Lynham, being an action by
citizens and residents of Switzerland, heirs of an alien who
died in Virginia, leaving property which had been adjudged
to have escheated to the State, to recover the proceeds of
said property, was decided at the present term of the United
States Supreme Court on writ of error to the Court of Appeals of the State of Virginia. The Courts of Virginia had
held that, under the laws of Virginia, the proceeds of the
property sought to be recovered belonged to the State; but
the judgment was reversed by the Supreme Court of the
United States, on the ground that the laws of Virginia were
in conflict with a treaty of the United States with the Swiss
Confederation.    After construing the treaty, the Court says: 22
"It remains to consider the effect of the treaty thus construed upon the rights of the parties. That the laws of the
State, irrespective of the treaty, would put the fund into her
coffers, is no objection to the right or the remedy claimed by-
the plaintiffs in error. The efficacy of the treaty is declared
and guaranteed by the Constitution of the United States."
The Court cites and comments upon Ware vs. Hylton, supra,
and then proceeds: "In Chirac vs. Chirac, 2 Wheat, 259, it
was held by this Court that a treaty with France gave to the
citizens of that country the right to purchase and hold land
in the United States, and that it removed the incapacity of
alienage, and placed the parties in precisely the same situation as if they had been citizens of this country. The State
law was hardly adverted to, and seems not to have been considered a factor of any importance in this view of the case.
The same doctrine was reaffirmed touching this treaty in
Carneal vs. Banks, 10 Wheat. 189, and with respect to the
British treaty of 1794, in Hughes vs. Edwards, 9 lb. 489. A
treaty stipulation may be effectual to protect the land of an
alien from forfeiture by escheat under the laws of a State.
(Orr vs. Hodgson, 4 Wheat. 453.) Mr. Calhoun, after laying
down certain exceptions and qualifications which do not
affect this class of cases, says: "Within these limits, all
questions which may arise between us and other Powers, be
the subject matter Avhat it may, fall within the treaty-making
power, and may be adjusted by it." (Treat, on the Constitution and Government of the United States, 204.) If the National Government has not the power to do what is done by
such treaties, it cannot be done at all; for the States are expressly forbidden to enter into any treaty, alliance or confederation." (Const., Art. I, sec. 10.) It must always be borne
in mind that the Constitution, laws, and treaties of the
United States are as much a part of the law of every State
as its own local laws and constitution. This is a fundamental
principle in our system of complex national polity. (See.
also ShanJcs vs. Dupont, 3 Pet. 242; Foster vs. Neilson, 2 lb.
314; The Cherokee Tobacco, 11 Wall. 616; Mr. Pinkney's
Speech, 3 El. of the U. S. 281; People ex rel. vs. Gerke, 5
Cal. 381.)    We have nu doubt that this treaty is within the 23
treaty-making power conferred by the Constitution. And it
is our duty to give it full effect." (The Reporter, Vol. IX,
p. 268.)
If therefore the constitutional provision, and the statute
in question made in pursuance of its mandate, are in conflict
with a valid treaty with China, they are void. The treaty
between the United States and China of July 28, 1868,
contains the following provisions:.
'' Article V. The United States 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 the one country to the other
for purposes of Curiosity, of trade, or as permanent residents."
'' Article VI. 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 residing in the United States shall enjoy the same privileges, immunities, and exemptions, in respect to travel or residence, as
may there be enjoyed by the citizens or subjects of the most
favored nation."    (16 Stat. 740.)
Thus the right of the Chinese to change their homes,
and to freely emigrate to the United States for the
purpose of permanent residence, is, in express terms,
recognized; and the next article in express terms stipulates that Chinese residing in the United States shall
enjoy the same privileges, immunities, and exemptions,
in respect to residence, as may there be enjoyed by the citizens and subjects of the most favored nation. The words
"privileges and immunities," as used in the Constitution in
relation to rights of citizens of the different States, have been
fully considered by the Supreme Court of the United States,
and generally defined, and there can be no doubt that the definitions given are equally applicable to the same words as used
in the treaty with China. In the " Slaughter-house Cases,"
the Supreme Court approvingly cites and reaffirms from
the opinion of Mr. Justice Washington, in Corfield vs. Coryell, \^
the following passage: "The inquiry is, what are the privi- ^ 24
leges and immunities of citizens of the several States ? We
feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong
to the rights of citizens of all free governments, and which
have at all times been enjoyed by citizens of the several
States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may all, however, be comprehended
under the following general heads: Protection by the Government, with the right to acquire and possess property of every .
kind, and to pursue and obtain happiness and safety, subject,
nevertheless, to such restraints as the Government may prescribe for the general good of the whole." The Court then
adds: "The description, when taken to include others not
named, but which are of the same general character, embraces
nearly every civil right for the establishment and protection of
lohich organized government is established." (16 Wall. 76.) And
in Ward vs. Maryland, the same Court observes: "Beyond
doubt these words [privileges and immunities] are words of
very comprehensive meaning, but it will be sufficient to say
> that the clause plainly and unmistakably secures and protects
the right of a citizen of one State to pass into any other State
of the Union for the purpose of engaging in lawful commerce,
trade, or business without molestation; to acquire personal property; to take and hold real estate," etc. (12 Wall. 430.) So in
the I Slaughter-house Cases," Mr. Justice Field remarks upon
jk.- these terms: ^' The privileges and immunities designated are
those which of right belong to citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. (16 Wall. 97.)
Mr. Justice Bradley, in discussing the question as to what is
embraced in the "privileges and immunities" secured to the
citizens, among other equally pointed and emphatic declarations, says: "In my judgment, the right of any citizen to follow whatever lawful employment he cJiooses to adopt (submitting
himself to all lawful regulations) is one of his most valuable
rights, and one lohich the Legislature of a State cannot invade, 25
whether restrained by its own Constitution or not. (Lb. 113-114.)
He also enumerates as among the fundamental rights embraced in the privileges and immunities of a citizen all the
absolute rights of individuals classed by Blackstone under
the three heads: " The right of personal security; the right
of personal liberty; and the right of private property." (lb.
115.) And in relation to these rights, says: "In my view, a
law which prohibits a large class of citizens from adopting a
lawful employment, or from following a lawful employment
previously adopted, does deprive them of liberty as well as property, without due process of law. Their rigM of choice is a portion of their liberty; their occupation is their property. Such a
law also deprives those citizens of the equal protection of the
laios, contrary to the last clause of the section." (Lb. 122.)
And Mr. Justice Swayne supports this view in the following
eloquent and emphatic lauguage: '' Life is the gift of God,
and the right to preserve it is the most sacred of the rights
of man. Liberty is freedom from all restraints but such as
are justly imposed by law. Beyond that line lies the domain
of usurpation and tyranny. Property is everything which
has an exchangeable value, and the right of property includes
the power to dispose of it according to the will of the owner.
Labor is property, and, as sueh, merits protection. The right
to make it available is next in importance to the rights of life
and liberty. It lies, to a large/extent, at the foundation of most
other forms of property." (lb. 127.) Some of these extracts
are from the dissenting opinions, but not upon points where
there is any disagreement. There is no difference of opinion
as to the significance of the terms "privileges and immunities." fndeed, it seems quite impossible that any definition
of these terms could be adopted, or even seriously proposed,
so narrow as to exclude the right to labor for subsistence.
As to by far the greater portion of the Chinese, as well as
other foreigners who land upon our shores, their labor is the
only exchangeable commodity they possess. To deprive
them of the right to labor is to consign them to starvation.
The right to labor is, of all others, after the right to live, the
fundamental, inalienable right of man, wherever he may be
permitted to be, of which he cannot be deprived,  either !
26
under the guise of law or otherwise, except by usurpation
and force.   Man ate and died.   When God drove him "forth
from the Garden of Eden to till the ground, from whence he
was taken," and said to him, " in the sweat of thy face shalt
thou eat bread, till thou return unto the ground," He invested
him with an inalienable right to labor in order that he might
again eat and live.    And  this absolute, fundamental, and
natural right was guaranteed by the National Government to
all Chinese who were permitted to come into the United
States under the treaty with their Government, " for the purposes of curiosity, of trade, or as permanent residents," to
the  same extent as it is enjoyed by citizens of the most
favored nation. It is one of the " privileges and immunities"
which it was stipulated that they should enjoy in that clause
of the treaty which say:  "Chinese subjects, visiting or residing in the United States, shall enjoy the same privileges,
immunities, and exemptions in respect to travel or residence
as may there be enjoyed by the citizens or subjects of the
most favored nation."   And any legislation or constitutional
provision of the State of California which limits or restricts
that right to labor to any extent, or in any manner not applicable to citizens of other foreign nations visiting or residing in California, is in conflict with this provision of the
treaty; and such are the express provisions of the Constitution and statute in question.    The same view of the effect of
the   treaty was   taken   in   Baker  vs.   Portland,  by Judge
Deady, of the District of Oregon, and concurred in by Mr.
Justice Field  on application for rehearing.   ,(5 Saw. 566-
572;     3    Pacific   Coast   Law   Journal,   469.)     I   should
not have deemed it necessary to cite so fully the opinions
of  others on a proposition so plain to my mind, but for
the  gravity of the  question, and the fact that the people
of California and their representatives in the Legislature
have incorporated in the Constitution of  the State, and in
legislation had in pursuance of the constitutional mandate,
after full discussion, provisions utterly at variance with the
views expressed.     Under such circumstances I feel called
upon to largely cite the thoroughly-considered and authoritative views of those distinguished jurists upon whom will 27
devolve the duty of ultimately determining the points in controversy.
As to the point whether the provision in question is within
the treaty-making power, I have as little doubt as upon the
point already discussed. Among all civilized nations, in
modern times at least, the treaty-making power has been accustomed to determine the terms and conditions upon which
the subjects of the parties to the treaty shall reside in the respective countries, and the treaty-making power is conferred
by the Constitution in unlimited terms. Beside, the authorities cited on the first point fully cover and determine this
question. If the treaty-making power is authorized to determine what foreigners shall be permitted to come into and reside within the country, and who shall be excluded, it
must have the power generally to determine and prescribe
upon what terms and conditions, such as are admitted, shall
be permitted to remain. If it has authority to stipulate that
aliens residing in a State may acquire and hold property, and
on their death transmit it to alien heirs who do not reside
in the State, against the provisions of the laws of the State,
otherwise valid—and so the authorities already cited hold—
then it certainly must be competent for the treaty-making
power to stipulate that aliens residing in a State in pursuance
of the treaty may labor in order that they may live and acquire property that may be so held, enjoyed, and thus transmitted to alien heirs. The former must include the latter—
the principal, the incidental power. (See also Holden vs.
Joy, 17 Wall. 242-3; U. S. vs. Whiskey, 3 Otto, 196-8.)
But the provisions in question are also in conflict with the
Fourteenth Amendment of the National Constitution, and
with the statute passed to give effect to its provisions. The
Fourteenth Amendment, among other things, provides that:
" No State shall make or enforce any law which shall abridge
the privileges and immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws."
Section 1977 of the Revised Statutes, passed to give effect
to this amendment, provides that:   "All persons within the 28
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."
It will be seen that in the latter clause the words are " any
person," and not " any citizen," and prevents any State from
depriving "any person" of life, liberty, or property without
due process of law, or from denying to " any person within
its jurisdiction the equal protection of the law."   In the particulars covered by these provisions it places the right of
every person within the jurisdiction of the State, be he Christian or heathen, civilized or barbarous, Caucasian or Mongolian, upon the same secure footing, and under the same protection as are the rights of citizens themselves under other
provisions of the Constitution; and, in consonance with these
provisions, the statute enacts 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,
*****   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."   Chinese residing in California,
in pursuance of the treaty stipulations, are "persons within
the jurisdiction of the State," and "of the United States,"
and therefore within the protection of these provisions.  And
contracts to labor, such as all others make, are contracts which
they have a "right to make and enforce," and the laws under
which others' rights are protected are the laws to which they are
entitled to the "equal benefits," "as is enjoyed by white citizens."
It would seem that no argument should be required to
show that the Chinese do not enjoy the equal benefit of the
laws with citizens, or "the equal protection of the laws,"
where the laws forbid their laboring, or making and enforcing contracts to labor, in a very large field of labor which
is open without limit, let, or hindrance to all citizens and all
other foreigners, without regard to nation, race, or color.
Yet in the face of these plain provisions of the National
I 29
Constitution and Statutes, we find both in the Constitution
and laws of a great State and member of this Union, just
such prohibitory provisions and enactments discriminating
against the  Chinese.    Argument and authority, therefore,
seem still to be necessary, and fortunately we are not without either.    From the citations already made, and from many
more  that might be made from Justices  Field, Bradley,
Swayne, and other judges, it appears that to deprive a man
of the right to select and follow any lawful ocupation—that
is, to labor, or contract to labor, if he so desires and can
find employment—is to deprive him of both liberty and property, within the meaning of the Fourteenth Amendment and
the Act of Congress.    Says Mr. Justice Bradley:    "For the
preservation,  exercise,   and enjoyment of these rights, the
individual citizen, as a necessity, must be left free to adopt
such calling, profession, or trade, as may seem to him most
conducive to that end.   Without this right he cannot be a freeman.   This right to choose one's calling is an essential part of
that liberty, which it is the object of Government to protect;
and a calling, when chosen, is a man's property and right.
Liberty and 'property are not protected where those rights are
arbitrarily assailed.'"    (16 Wall. 116.)  Whatever may be said
as to this clause of the  amendment, there can be no doubt
as to the effect of the Act.    With respect to the last clause,
Mr. Justice Bradley says, of a law which interferes with a
man's right to choose and follow an occupation:    "Such a
law also deprives those   citizens of the   equal protection   of
the  laws,   contrary to  the last clause of  the section."    (lb.
122.)    And   Mr.  Justice  Swayne:     " The equal protection
of the laws places all upon an equal footing of legal equality,
and gives the same protection to all for  the perservaiion   of
life, liberty, and property,   and  the pursuit   of hajypiness."
(lb. 127.)    In Ah Kow vs. Nunan,  5  Saw.  562;  3 Pacific
Coast Law Journal, 413, Mr. Justice Field observes:    "But
in  our country,   hostile and discriminating legislation by a
State against persons of any class, sect, creed, or nation, in
whatever form it   may   be  expressed, is forbidden by the
Fourteenth  Amendment of the  Constitution.     That  amendment, in its first section, declares who are citizens of the 30
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 while
within 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."
And the same views are expressed with equal emphasis in
In re Ah Fong, 3 Saw. 157. Discriminating State legislation
has often been held void by the Supreme Court, as being in
violation of other provisions of the National Constitution, no
more specific than the Fourteenth Amendment. (Welton vs.
Missouri,! Otto, 277, 282; Cook'vs. Pennsylvania, 7 Otto,
572-3, and numerous cases cited.)
Since the foregoing was written, I have received the
opinion of the Supreme Court of the United States in
Strauder vs. The State of West Virginia, recently decided,
which appears to me to authoritatively dispose of the point
now under consideration. The case was an indictment of a
colored man for murder, and the statute of West Virginia
limited the qualified jurors to white citizens. The statute
stating the qualifications of jurors was in the following
words: "All white male persons, who are twenty-one years
of age, and who are citizens of this State, shall be liable to
serve as jurors, except as herein provided "—the exceptions
being State officials.    This was claimed to be a violation of 31
the Fourteenth Amendment, as excluding colored citizens
otherwise qualified from jury service; and the Supreme Court
so held.    The Court in deciding the case, says the Fourteenth Amendment "ordains that no State shall deprive any
person of life, liberty,  or property, without due process of
law; or deny to any person within its jurisdiction the equal
protection of the laws.    What is this but declaring that the
law in the States shall be the same for the black as for the
white; that all persons, whether colored or white, shall stand
equal before the laws of the States; and in regard to the colored race, for whose protection the amendment was primarily
designed, that no discrimination shall be made against them
by law because of their color? The words of the amendment,
it is true, are prohibitory; but they contain a necessary implication of a positive immunity, or right, most valuable to
the colored race—the right to  exemption from unfriendly
legislation against them distinctively, as colored; exemption
from legal discriminations, implying inferiority in civil society, lessening the security of the enjoyment of the rights
which others  enjoy,   and discriminations which are steps
toward  reducing them to the condition of a subject race.
T7iat the  West Virginia Statute respecting juries—the statute
that controlled the selection of the grand and petit jury in
the case of the plaintiff in error—is such a discrimination,
ought not to be doubted, nor would it be if the persons excludedby
it were white men."    (10 Alb. Law Jour. 227.)    In speaking
of the Act to enforce this amendment, the Court further says,
1 sections 1977 and 1978, of the Revised Statutes, before cited,
"partially enumerate the rights and immunities intended
to be guaranteed by the Constitution;"  and that, "this Act
puts in the form of a statute what had been substantially ordained by the Constitutional amendment." . (lb. 228.)    If
this exclusion of colored men from sitting upon a jury by implication is a violation of the Constitution, as denying the
equal protection of ' the laws to colored persons, a fortiori
must the express positive provisions of the Constitution and
Act of the Legislature of the State of California be in conflict with that instrument, as denying the equal protection of
the laws to the Chinese residents of the State.    Upon reason 32
and these authorities, then, it seems impossible to doubt
that the provisions in question are both in letter and spirit
in conflict with the Constitution and laws of the United
States, as well as with the stipulations of the treaty with
China. And this constitutional right is wholly independent
of any treaty stipulations, and would exist without any treaty
whatever, so long as Chinese are permitted to come into
and reside within the jurisdiction of the United States. The
protection is given by the Constitution itself, and the laws
passed to give it effect, irrespective of treaty stipulations.
But it is urged on behalf of the respondent that, under the
provisions of Article XII of the State Constitution, providing that "all laws * * concerning corporations * *
may be altered from time to time, or repealed," the power of
the Legislature over corporations is absolutely unlimited;
that it may, by legislation under this reserved power, impose
any restrictions or limitations upon the acts and operations
of corporations, however unreasonable, stringent, or injurious to their interests; and as a penalty for violating such
restrictions, destroy them, and criminally punish their officers, agents, servants, employees, assignees, or contractors;
that, as a condition of continued existence, they may be prohibited from employing Chinese, and the prohibition enforced
against the corporation and the persons named by means of
the penalties indicated; and thus, by means of the State's
control over the corporation created by its authority, it can
indirectly accomplish the purpose of excluding the Chinese
from, perhaps, their largest and most important field of labor
—a purpose which could not be accomplished by direct means.
This position the Attorney-General and the other counsel for
the respondent, most earnestly press, and upon it they most
confidently rely.
I do not assent to any such unlimited power over corporations. There must be—there is—a limit somewhere. That
there is such a limit is recognized and expressly asserted in
numerous cases by the Supreme Court of the United States,
and by the highest courts of many of the States; and I know
of none to the contrary. But precisely where the line is to
be drawn, I confess, in the present state of the authoritative %
33
adjudications, I am unable to say. I am inclined to the
. opinion, however, that it would exclude legislation of the
character in question, even if it concerned the State and the
corporations alone, and did not conflict with other rights
protected by treaties with foreign nations, or by the Constitution of the United States—the supreme law of the land.
But assume it to be otherwise. When the State legislation
affecting its corporations comes in conflict with the stipulations of valid treaties, and with the National Constitution,
and laws made in pursuance thereof, it must yield to their
superior authority. And such, in my judgment, are the provisions in question. The policy of the constitutional provision and statute in question does not have in view the
relations of the corporation to the State, as the object to be
effected or accomplished; but it seeks to reach the Chinese,
and exclude them from a wide range of labor and employment, the ultimate end to be accomplished being to drive
those already here from the State, and prevent others from
coming hither—the discriminating legislation being only the
means by which the end is to be attained—the ultimate purpose to be accomplished. The end sought to be attained is
unlawful. It is in direct violation of our treaty stipulations
and the Constitution of the United States. The end being
unlawful and repugnant to the supreme law of the land, it is
equally unlawful, and equally in violation of the Constitution-
and treaty stipulations, to use any means, however proper, or
within the power of the State for lawful purposes, for the
attainment of that unlawful end, or accomplishment of that
unlawful purpose. It cannot be otherwise than unlawful to
use any means whatever to accomplish an unlawful purpose.
This proposition would seem to be too plain to require argument or authority. Yet there is an abundance of authority
on the point, although perhaps not stated in this particular
form. (Brown vs. Maryland, 12 Wheat. 419; Ward vs* Maryland, 12 Wall. 431; Woodruff vs. Parham, 8 Wall. 130, 140;
Hinson vs. Lott, Id. 152; Welton vs. Missouri, 1 Otto, 279,
282; Cook vs. Pennsylvania, 7 Otto, 573.) These cases hold
that the power of taxation, and power to require licenses, are
legitimate powers to be exercised without discrimination; but f
34
they are unlawful and unconstitutional when used to discriminate against foreign goods or manufacturers of other States.-
That is to say, they are constitutional and lawful when
used for a constitutional and lawful purpose, but unlawful and in violation of the Constitution when used to
attain an unlawful or unconstitutional end. And whatever form the law may take on, or in whatever language
be couched, the Court will strip off its disguise, and
judge of the purpose from the manifest intent as indicated by the effect. In Cicmmings vs. Missouri, Mr.
Justice Field, in speaking for the Court, says: '' The
difference between the last case supposed, and the case as
actually presented, is one of form only, and not substance.
* * * The deprivation is effected with equal certainty
in the one case as it would be in the other, but not with
equal directness. The purpose of the law-maker, in the case
supposed, would be openly avowed; in the case existing, it
is only disguised. The legal result must be the same; for
what cannot be done directly cannot be done indirectly.
The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended
that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment under any
form, however disguised. If the inhibition can be evaded
by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding." (4 Wall. 325.
See also Henderson vs. Mayor of New York, 2 Otto, 268;
Chy Lung vs. Freeman, lb. 279; Railroad Go. vs. Husen,
5 Otto, 472.)
In Doyle vs. Continental Insurance Co., 4 Otto, 535, most
confidently relied on by the respondent, the end to be accomplished—the exclusion of a foreign corporation from
doing business in the State except upon conditions prescribed by the State—was lawful, and the means adopted
lawful. There were no rights secured by treaty or the National Constitution violated. The State and the foreign corporation were the only parties, and their rights the only
rights affected. Had the Legislature, instead of prohibiting the corporation from doing business in the State as a 35
penalty for violation of the conditions prescribed, attempted
to enforce compliance by criminally punishing the agent who
transferred the action brought against the corporation from
the State to the National Court, the question would certainly
have been different, and the statute making the transfer a
misdemeanor would have been void; for under the Constitution of the United States the foreign corporation had a right
to transfer the case, of which the State could not by law,
nor the corporation by stipulation, deprive it, as was held in
Insurance Company vs. Morse, 20 Wall. 445. It being lawful
to transfer, and the right to transfer being secured by the
National Constitution, it was incompetent for the Legislature to make the transfer an offense, and punish it as such, in
violation of the supreme" law of the land. The act could
not at the same time be both lawful and criminal. And this
is the plain distinction between the case relied on and the
one now under consideration.
The object, and the only object, to be accomplished by the
State constitutional and statutory provisions in question is
manifestly to restrict the right of the Chinese residents to
labor, and thereby deprive them of the means of living, in
order to drive those now here from the State, and prevent
others from coming hither; and this abridges their privileges
and immunities, and deprives them of the equal protection
of the laws, in direct violation of the treaty and Constitution—the supreme law of the land. To perceive that the
means employed are admirably adapted to the end proposed,
it is only necessary to consider for a moment some of the
leading provisions of Article XIX of the State Constitution.
Section 1 provides that: '' The Legislature shall prescribe
all necessary regulations for the protection  of the  State
* * * from the burdens and evils arising from the
presence of aliens who are or may become vagrants, paupers,
mendicants, criminals, etc., * * * and to impost conditions upon which such persons may reside in the State,
and to provide the means and mode of their removal from
the State upon failure or refusal to comply with such conditions."
Section  2 is the one which prohibits  any corporation 36
from employing, directly or indirectly, in any capacity, any
Chinese or Mongolians; and section 3 provides that: "No
Chinese shall be employed on any State, municipal, or other
work, except in punishment for crime." After providing for
the removal from the State of all who "may become vagrants,
paupers, etc.," it is difficult to conceive of any more effectual
means, so far as they go, to reduce the Chinese to " vagrants,
paupers, mendicants, and criminals," in order that they may
be removed, than to forbid their employment, " directly or
indirectly, in any capacity " —that is to say, to exclude them
from engaging in useful labor. If it is competent for the
State to enforce these provisions, it may also prohibit corporations from dealing with them in any capacity whatever—
from purchasing from or selling to them any of the necessaries of life, or any articles of trade and commerce.
In view of the vast extent of the field of labor and business now engrossed by corporations, to exclude the Chinese
from all dealings with corporations is to reduce their means
of avoiding vagrancy, pauperism, and mendicity to very
narrow limits; and from the present temper of our people,
and the number of bills now pending before the Legislature
tending to that end, there can be no doubt that if the legislation now in question can be sustained, the means of avoiding the condition of pauperism denounced in the State Constitution and laws would soon be reduced to the minimum.
In the language of Deady, J., in Baker vs. Portland,
I Admit the wedge of State interference ever so little, and
there is nothing to prevent its being driven home and overriding the treaty-making power altogether." (5 Saw. 750;
3 Pac. Coast Law Journal, 469.)
Vagrancy and pauperism, one would suppose, ought to be
discouraged rather than induced by solemn constitutional
mandates requiring legislation necessarily leading to such
vices. Common experience, I think, would lead to the conclusion that the Chinese within the State, with equal opportunities, are as little likely to fall into vagrancy, pauperism,
and mendicity, and thereby become a public charge, as any
other class, native or foreign born. Industry and economy,
by which the Chinese are able to labor cheaply and still ac- 37
cumulate large amounts of money to send out of the coun.
try—the objection perhaps most frequently and strenuously
urged against their presence—are not the legitimate parents
of "vagrancy, pauperism, mendicity, and crime." There
are other objections to an unlimited immigration of that
people, founded on distinctions of race and differences in
the character of their civilization, religion, and other habits,
to iny mind of a far more weighty character. But these,
unfortunately for those seeking to evade treaty stipulations
and constitutional guarantees, can by no plausible misnomer
be ranged under the police powers of the State.
Holding, as we do, that the constitutional and statutory
provisions in question are void, for reasons already stated,
we deem it proper again to call public attention to the fact,
however unpleasant it may be to the very great majority of
the citizens of California, that however undesirable, or even
ultimately dangerous to our civilization, an unlimited immigration of Chinese may be, the remedy is not with the State,
but with the General Government.    The Chinese have a perfect right, under the stipulations of the treaty, to reside in
the State, and* enjoy all privileges, immunities, and exemptions that may there be enjoyed by the citizens and subjects
of any other nation; and under-the Fourteenth Amendment
to the National Constitution, the right to enjoy "life, liberty,   and property,"  and   " the  equal protection of   the
laws," in the same degree and to the same extent as these
rights are enjoyed by our own citizens; and in the language
of Mr. Justice Bradley, in the Slaughter-house Cases, " the
whole power of the nation is pledged to sustain those rights."
To persist, on the part of the State, in legislation in direct
violation of these treaty stipulations, and of the Constitution of the United States, and in endeavoring to enforce
such void legislation, is to waste efforts in a barren field,
which, if expended in the proper direction, might produce
valuable fruit; and besides, it is little short of incipient rebellion.
In 1870 the Chinese at Tien-tsin, actuated by similar unfriendly feelings and repugnance toward foreigners of the Caucasian race, made a riotous attack upon the missionaries station- 38
ed at that place, killed some French and Russian citizens, and
destroyed the buildings and property of French, Russian, and
American residents. These Powers promptly and energetically demanded satisfaction from the Chinese Empire under
their various treaties. The result was that fifteen Chinese
were convicted and executed, and twenty others banished.
The two magistrates having jurisdiction as heads of
the city government were also banished, for not taking
effectual means to suppress the riot and protect the
foreigners. The buildings of the American citizens
were re-erected, and the property destroyed paid for,
to the satisfaction of the parties suffering, and at the
expense of the city. (Papers on Foreign Relations for
1871.) Thus, under the same treaty which guarantees the
rights of Chinese subjects to reside and pursue all lawful occupations in California, the United States were
prompt to demand satisfaction for injuries resulting to our
citizens from infractions of the treaty by citizens of China.
And the Chinese, Government promptly punished the guilty
parties, and made ample satisfaction for the pecuniary losses
sustained. It ought to be understood by the.people of California, if it is not now, that the same measure of justice and
satisfaction which our Government demands and receives
from the Chinese Emperor for injuries to our citizens resulting from infractions of the treaty, must be meted out to the
Chinese residents of Calif ornia who sustain injuries resulting
from infractions of the same treaty by our own citizens, or
by other foreign subjects residing within our jurisdiction,
and enjoying the protection of similar treaties and of our
laws. And it should not be forgotten that in case of destruction of, or damage to Chinese property by riotous or
other unlawful proceedings, the city of San Francisco, like
the more populous city of Tien-tsin, may be called upon to
make good the loss.
In view of recent events transpiring in the city of San Francisco, in anticipation of the passage of the statute now in ques-
^| tion, which have become a part of the public history of the
times, I deem it not inappropriate in this connection to call
attention to the fact, of which many are probably unaware, that 39
the Statutes of the United States are not without provisions,
both of a civil and criminal nature, framed and designed expressly to give effect to, and enforce that provision of, the
Fourteenth Amendment to the National Constitution, which
guarantees to every "person"—which term, as we have seen,
includes Chinese—"within the jurisdiction " of California,
"the equal protection of the laws." Section 1979 of the
Revised Statutes provides a civil remedy for infractions of
this amendment. It is as follows: "Every person who,
under the color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes
to be subjected, any citizen of the United States, or 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."
Thus a remedy by action is given to any "person," against
any other person who deprives him of "any right, privilege,
or immunity," secured to him by the Constitution, even if it
is done "under color of any statute, ordinance, regulation,
custom, or usage of the State." Possibly the prisoner might
have been liable had'he, in pursuance of the mandate of the
statute in question, and on that ground discharged the
Chinamen for whose employment he is now under arrest.
But it is unnecessary to so determine now. At all events, he
stood between two statutes, and he was bound to yield obedience to that which is superior.
Section 5510 makes a similar deprivation of rights under
color of any statute, etc., a criminal offense, punishable by
fine and imprisonment. And section 5519 provides that
"if two or more persons in any State * * * conspire
** * * for the purpose of depriving, either directly
or indirectly, any person or class of persons, of the equal
protection of the laws, or of equal privileges and immunities under the law, * * * each of such persons shall
be punished by a fine of not less than five hundred dollars
nor more than five thousand dollars, or by imprisonment,
with or without hard labor, not less than six months nor 40
more than six years, or by both such fine and imprisonment."
These provisions of the United States Statutes—the supreme
law of the land—are commended to the consideration of all
persons who are disposed to go from place to place, and, by
means of threats and intimidation, endeavor to compel employers to' discharge peaceable and industrious Chinamen
engaged in their service. There are other provisions, both
civil and criminal, of a similar character, having the same
end in view.
Only a few days since, the Supreme Court of the United
States sustained an indictment in In re Coles and The Commonwealth of Virginia, petitioners, on habeas corpus against ft
Connty Judge of Virginia, found under section 4 of the Civil
Rights Act of 1875 (18 Stat. 336), for failing to summon
colored citizens as jurors, "on account of race and color."
The Court held this Act to be constitutional and valid under
the Fourteenth Amendment, and that it deprived colored citizens of the equal protection of the laws. Thus it appears
that Congress, by the most stringent statutory provisions, has
provided for the protection of all citizens and persons
within the jurisdiction of the United States, in the full and
complete enjoyment of the "equal protection of the laws,"
and of all "privileges and immunities guaranteed" by the
Fourteenth Amendment in all their phases; and that the
highest judicial tribunal of the nation has deemed it its
duty to give such statutory provisions the fullest and most
complete effect.
The result is that the prisoner is in custody in violation
both of the Constitution and laws of the United States, and
of the treaty between the United States and the Empire of
China, and is entitled to be discharged; and it is so ordered.
March 22, 1880.  K
I