In a suit brought to this court from a State court which
involves the constitutionality of ordinances made by a municipal
corporation in the State, this court will, when necessary, put its
own independent construction upon the ordinances.
A municipal ordinance to regulate the carrying on of public
laundries within the limits of the municipality violates the
provisions of the Constitution of the United States if it confers
upon the municipal authorities arbitrary power, at their own will,
and without regard to discretion in the legal sense of the term, to
give or withhold consent as to persons or places, without regard to
the competency of the persons applying, or the propriety of the
place selected, for the carrying on of the business.
An administration of a municipal ordinance for the carrying on
of a lawful business within the corporate limits violates the
provisions of the Constitution of the United States if it makes
arbitrary and unjust discriminations, founded on differences of
race between persons otherwise in similar circumstances.
The guarantees of protection contained in the Fourteenth
Amendment to the Constitution extend to all persons within the
territorial jurisdiction of the United States, without regard to
differences of race, of color, or of nationality.
Those subjects of the Emperor of China who have the right to
temporarily or permanently reside within the United States, are
entitled to enjoy the protection guaranteed by the Constitution and
afforded by the laws.
These two cases were argued as one, and depended upon precisely
the same state of facts; the first coming here upon a writ of error
to the Supreme Court of the State of California, the second on
appeal from the Circuit Court of the United States for that
district. The plaintiff in error, Yick Wo, on August 4, 1885,
petitioned the Supreme Court of California for a writ of habeas
corpus, alleging that he was illegally deprived of his personal
Page 118 U. S. 357
liberty by the defendant as sheriff of the city and county of
San Francisco.
The sheriff made return to the writ that he held the petitioner
in custody by virtue of a sentence of the Police Judges Court, No.
2, of the city and county of San Francisco, whereby he was found
guilty of a violation of certain ordinances of the board of
supervisors of that county, and adjudged to pay a fine of $10, and,
in default of payment, be imprisoned in the county jail at the rate
of one day for each dollar of fine until said fine should be
satisfied, and a commitment in consequence of nonpayment of said
fine.
The ordinances for the violation of which he had been found
guilty were set out as follows:
Order No. 156, passed May 26, 1880, prescribing the kind of
buildings in which laundries may be located.
"The people of the city and county of San Francisco do ordain as
follows:"
"SEC. 1. It shall be unlawful, from and after the passage of
this order, for any person or persons to establish, maintain, or
carry on a laundry within the corporate limits of the city and
county of San Francisco without having first obtained the consent
of the board of supervisors, except the same be located in a
building constructed either of brick or stone."
"SEC. 2. It shall be unlawful for any person to erect, build, or
maintain, or cause to be erected, built, or maintained, over or
upon the roof of any building now erected or which may hereafter be
erected within the limits of said city and county, any scaffolding
without first obtaining the written permission of the board of
supervisors, which permit shall state fully for what purpose said
scaffolding is to be erected and used, and such scaffolding shall
not be used for any other purpose than that designated in such
permit."
"SEC. 3. Any person who shall violate any of the provisions of
this order shall be deemed guilty of a misdemeanor, and upon
conviction thereof shall be punished by a fine of not more than one
thousand dollars, or by imprisonment in the county jail not more
than six months, or by both such fine and imprisonment. "
Page 118 U. S. 358
Order No. 1587, passed July 28, 1880, the following section:
"SEC. 68. It shall be unlawful, from and after the passage of
this order, for any person or persons to establish, maintain, or
carry on a laundry within the corporate limits of the city and
county of San Francisco without having first obtained the consent
of the board of supervisors, except the same be located in a
building constructed either of brick or stone."
The following facts were also admitted on the record: that
petitioner is a native of China and came to California in 1861, and
is still a subject of the Emperor of China; that he has been
engaged in the laundry business in the same premises and building
for twenty-two years last past; that he had a license from the
board of fire wardens, dated March 3, 1884, from which it
appeared
"that the above described premises have been inspected by the
board of fire wardens, and upon such inspection said board found
all proper arrangements for carrying on the business; that the
stoves, washing and drying apparatus, and the appliances for
heating smoothing irons are in good condition, and that their use
is not dangerous to the surrounding property from fire, and that
all proper precautions have been taken to comply with the
provisions of order No. 1617, defining 'the fire limits of the city
and county of San Francisco and making regulations concerning the
erection and use of buildings in said city and county,' and of
order No. 1670, 'prohibiting the kindling, maintenance, and use of
open fires in houses;' that he had a certificate from the health
officer that the same premises had been inspected by him, and that
he found that they were properly and sufficiently drained, and that
all proper arrangements for carrying on the business of a laundry,
without injury to the sanitary condition of the neighborhood, had
been complied with; that the city license of the petitioner was in
force and expired October 1st, 1885, and that the petitioner
applied to the board of supervisors, June 1st, 1885, for consent of
said board to maintain and carry on his laundry, but that said
board, on July 1st, 1885, refused said consent."
It is also admitted to be true, as alleged in the petition,
that, on February 24, 1880,
"there were about 320 laundries in the city and county of San
Francisco, of which
Page 118 U. S. 359
about 240 were owned and conducted by subjects of China, and of
the whole number,
viz., 320, about 310 were constructed of
wood, the same material that constitutes nine-tenths of the houses
in the city of San Francisco. The capital thus invested by the
subjects of China was not less than two hundred thousand dollars,
and they paid annually for rent, license, taxes, gas, and water
about one hundred and eighty thousand dollars."
It was alleged in the petition, that
"your petitioner and more than one hundred and fifty of his
countrymen have been arrested upon the charge of carrying on
business without having such special consent, while those who are
not subjects of China, and who are conducting eighty odd laundries
under similar conditions, are left unmolested and free to enjoy the
enhanced trade and profits arising from this hurtful and unfair
discrimination. The business of your petitioner, and of those of
his countrymen similarly situated, is greatly impaired, and in many
cases practically ruined, by this system of oppression to one kind
of men and favoritism to all others."
The statement therein contained as to the arrest, &c., was
admitted to be true, with the qualification only that the eighty
odd laundries referred to are in wooden buildings without scaffolds
on the roofs.
It was also admitted
"that petitioner and 200 of his countrymen similarly situated
petitioned the board of supervisors for permission to continue
their business in the various houses which they had been occupying
and using for laundries for more than twenty years, and such
petitions were denied, and all the petitions of those who were not
Chinese, with one exception of Mrs. Mary Meagles, were
granted."
By section 2 of article I of the Constitution of California, it
is provided that
"any county, city town, or township may make and enforce within
its limits all such local, police, sanitary, and other regulations
as are not in conflict with general laws."
By section 74 of the Act of April 19, 1856, usually known as the
consolidation act, the board of supervisors is empowered, among
other things,
"to provide by regulation for the prevention and summary removal
of nuisances to public health, the
Page 118 U. S. 360
prevention of contagious diseases; . . . to prohibit the
erection of wooden buildings within any fixed limits where the
streets shall have been established and graded; . . . to regulate
the sale, storage, and use of gunpowder or other explosive or
combustible materials and substances, and make all needful
regulations for protection against fire; to make such regulations
concerning the erection and use of buildings as may be necessary
for the safety of the inhabitants."
The Supreme Court of California, in the opinion pronouncing the
judgment in this case, said:
"The board of supervisors, under the several statutes conferring
authority upon them, has the power to prohibit or regulate all
occupations which are against good morals, contrary to public order
and decency, or dangerous to the public safety. Clothes washing is
certainly not opposed to good morals or subversive of public order
or decency, but, when conducted in given localities, it may be
highly dangerous to the public safety. Of this fact, the
supervisors are made the judges, and, having taken action in the
premises, we do not find that they have prohibited the
establishment of laundries, but that they have, as they well might
do, regulated the places at which they should be established, the
character of the buildings in which they are to be maintained, etc.
The process of washing is not prohibited by thus regulating the
places at which and the surroundings by which it must be exercised.
The order No. 1569 and section 68 of order No. 1587 are not in
contravention of common right or unjust, unequal, partial, or
oppressive in such sense as authorizes us in this proceeding to
pronounce them invalid."
After answering the position taken in behalf of the petitioner,
that the ordinances in question had been repealed, the court
added:
"We have not deemed it necessary to discuss the question in the
light of supposed infringement of petitioner's rights under the
Constitution of the United States, for the reason that we think the
principles upon which contention on that head can be based have in
effect been set at rest by the cases of
Barbier v.
Connolly, 113 U. S. 27, and
Soon Hing
v. Crowley, 113 U. S. 703."
The writ was accordingly discharged, and the prisoner
remanded.
Page 118 U. S. 361
In the other case, the appellant, Wo Lee, petitioned for his
discharge from an alleged illegal imprisonment upon a state of
facts shown upon the record precisely similar to that in the case
of Yick Wo. In disposing of the application, the learned Circuit
Judge, Sawyer, in his opinion, 26 Fed.Rep. 471, after quoting the
ordinance in question, proceeded at length as follows:
"Thus, in a territory some ten miles wide by fifteen or more
miles long, much of it still occupied as mere farming and pasturage
lands and much of it unoccupied sand banks, in many places without
a building within a quarter or half a mile of each other, including
the isolated and almost wholly unoccupied Goat Island, the right to
carry on this, when properly guarded, harmless and necessary
occupation, in a wooden building is not made to depend upon any
prescribed conditions giving a right to anybody complying with
them, but upon the consent or arbitrary will of the board of
supervisors. In three-fourths of the territory covered by the
ordinance, there is no more need of prohibiting or regulating
laundries than if they were located in any portion of the farming
regions of the State. Hitherto, the regulation of laundries has
been limited to the thickly settled portions of the city. Why this
unnecessary extension of the limits affected, if not designed to
prevent the establishment of laundries, after a compulsory removal
from their present locations, within practicable reach of the
customers or their proprietors? And the uncontradicted petition
shows that all Chinese applications are, in fact, denied, and those
of Caucasians granted -- thus, in fact, making the discriminations
in the administration of the ordinance, which its terms permit. The
fact that the right to give consent is reserved in the ordinance
shows that carrying on the laundry business in wooden buildings is
not deemed, of itself, necessarily dangerous. It must be apparent
to every well informed mind that a fire, properly guarded, for
laundry purposes, in a wooden building, is just as necessary, and
no more dangerous, than a fire for cooking purposes or for warming
a house. If the ordinance under consideration is valid, then the
board of supervisors can pass a valid ordinance preventing the
maintenance, in a wooden
Page 118 U. S. 362
building, of a cooking stove, heating apparatus, or a
restaurant, within the boundaries of the city and county of San
Francisco, without the consent of that body, arbitrarily given or
withheld, as their prejudices or other motives may dictate. If it
is competent for the board of supervisors to pass a valid ordinance
prohibiting the inhabitants of San Francisco from following any
ordinary, proper, and necessary calling within the limits of the
city and county except at its arbitrary and unregulated discretion
and special consent, and it can do so if this ordinance is valid,
then it seems to us that there has been a wide departure from the
principles that have heretofore been supposed to guard and protect
the rights, property, and liberties of the American people. And if,
by an ordinance, general in its terms and form like the one in
question, by reserving an arbitrary discretion in the enacting body
to grant or deny permission to engage in a proper and necessary
calling, a discrimination against any class can be made in its
execution, thereby evading and, in effect, nullifying the
provisions of the National Constitution, then the insertion of
"
brk:
provisions to guard the rights of every class and person in that
instrument was a vain and futile act. The effect of the execution
of this ordinance in the manner indicated in the record would seem
to be necessarily to close up the many Chinese laundries now
existing, or compel their owners to pull down their present
buildings and reconstruct of brick or stone, or to drive them
outside the city and county of San Francisco to the adjoining
counties, beyond the convenient reach of customers, either of which
results would be little short of absolute confiscation of the large
amount of property shown to be now, and to have been for a long
time, invested in these occupations. If this would not be depriving
such parties of their property without due process of law, it would
be difficult to say what would effect that prohibited result. The
necessary tendency, if not the specific purpose, of this ordinance,
and of enforcing it in the manner indicated in the record, is to
drive out of business all the numerous small laundries, especially
those owned by Chinese, and give a monopoly of the business to the
large institutions established and carried on by means of large
associated Caucasian capital. If the facts appearing on the
face
Page 118 U. S. 363
of the ordinance, on the petition and return, and admitted in
the case and shown by the notorious public and municipal history of
the times indicate a purpose to drive out the Chinese laundrymen,
and not merely to regulate the business for the public safety, does
it not disclose a case of violation of the provisions of the
Fourteenth Amendment to the National Constitution, and of the
treaty between the United States and China, in more than one
particular? . . . If this means prohibition of the occupation and
destruction of the business and property of the Chinese laundrymen
in San Francisco -- and it seems to us this must be the effect of
executing the ordinance -- and not merely the proper regulation of
the business, then there is discrimination and a violation of other
highly important rights secured by the Fourteenth Amendment and the
treaty. That it does mean prohibition as to the Chinese it seems to
us must be apparent to every citizen of San Francisco who has been
here long enough to be familiar with the cause of an active and
aggressive branch of public opinion and of public notorious events.
Can a court be blind to what must be necessarily known to every
intelligent person in the State?
See Ah Kow v. Nunan, 5
Sawyer, 552, 560;
Sparrow v.
Strong, 3 Wall. 97,
70 U. S. 104;
Brown v. Piper, 91 U. S. 37,
91 U. S. 42.
But, in deference to the decision of the Supreme Court of
California in the case of
Yick Wo, and contrary to his own
opinion as thus expressed, the circuit judge discharged the writ
and remanded the prisoner.
Page 118 U. S. 365
Mr. JUSTICE MATTHEWS delivered the opinion of the court.
In the case of the petitioner, brought here by writ of error to
the Supreme Court of California, our jurisdiction is limited to the
question whether the plaintiff in error has been denied a right in
violation of the Constitution, laws, or treaties of the United
States. The question whether his imprisonment is illegal under the
constitution and lass of the State is not open to us. And although
that question might have been considered
Page 118 U. S. 366
in the Circuit Court in the application made to it, and by this
court on appeal from its order, yet judicial propriety is best
consulted by accepting the judgment of the State court upon the
points involved in that inquiry.
That, however, does not preclude this court from putting upon
the ordinances of the supervisors of the county and city of San
Francisco an independent construction, for the determination of the
question whether the proceedings under these ordinances and in
enforcement of them are in conflict with the Constitution and laws
of the United States necessarily involves the meaning of the
ordinance, which, for that purpose, we are required to ascertain
and adjudge.
We are consequently constrained, at the outset, to differ from
the Supreme Court of California upon the real meaning of the
ordinances in question. That court considered these ordinances as
vesting in the board of supervisors a not unusual discretion in
granting or withholding their assent to the use of wooden buildings
as laundries, to be exercised in reference to the circumstances of
each case with a view to the protection of the public against the
dangers of fire. We are not able to concur in that interpretation
of the power conferred upon the supervisors. There is nothing in
the ordinances which points to such a regulation of the business of
keeping and conducting laundries. They seem intended to confer, and
actually do confer, not a discretion to be exercised upon a
consideration of the circumstances of each case, but a naked and
arbitrary power to give or withhold consent not only as to places,
but as to persons. So that, if an applicant for such consent, being
in every way a competent and qualified person and having complied
with every reasonable condition demanded by any public interest,
should, failing to obtain the requisite consent of the supervisors
to the prosecution of his business, apply for redress by the
judicial process of mandamus to require the supervisors to consider
and act upon his case, it would be a sufficient answer for them to
say that the law had conferred upon them authority to withhold
their assent without reason and without responsibility. The power
given to them is not confided to their discretion in the legal
sense of that term, but is granted
Page 118 U. S. 367
to their mere will. It is purely arbitrary, and acknowledges
neither guidance nor restraint.
This erroneous view of the ordinances in question led the
Supreme Court of California into the further error of holding that
they were justified by the decisions of this court in the cases of
Barbier v. Connolly, 113 U. S. 27, and
Soon Hing v. Crowley, 113 U. S. 703. In
both of these cases, the ordinance involved was simply a
prohibition to carry on the washing and ironing of clothes in
public laundries and washhouses within certain prescribed limits of
the city and county of San Francisco from ten o'clock at night
until six o'clock in the morning of the following day. This
provision was held to be purely a police regulation within the
competency of any municipality possessed of the ordinary powers
belonging to such bodies, a necessary measure of precaution in a
city composed largely of wooden buildings like San Francisco, in
the application of which there was no invidious discrimination
against anyone within the prescribed limits, all persons engaged in
the same business being treated alike, and subject to the same
restrictions and entitled to the same privileges under similar
conditions.
For these reasons, that ordinance was adjudged not to be within
the prohibitions of the Fourteenth Amendment to the Constitution of
the United States, which, it was said in the first case cited,
"undoubtedly intended not only that there should be no arbitrary
deprivation of life or liberty, or arbitrary spoliation of
property, but that equal protection and security should be given to
all under like circumstances in the enjoyment of their personal and
civil rights; that all persons should be equally entitled to pursue
their happiness and acquire and enjoy property; that they should
have like access to the courts of the country for the protection of
their persons and property, the prevention and redress of wrongs,
and the enforcement of contracts; that no impediment should be
interposed to the pursuits of anyone except as applied to the same
pursuits by others under like circumstances; that no greater
burdens should be laid upon one than are laid upon others in the
same calling and condition; and that, in the administration of
criminal justice no different or higher punishment should be
imposed upon
Page 118 U. S. 368
one than such as is prescribed to all for like offences. . . .
Class legislation, discriminating against some and favoring others,
is prohibited, but legislation which, in carrying out a public
purpose, is limited in its application if, within the sphere of its
operation, it affects alike all persons similarly situated, is not
within the amendment."
The ordinance drawn in question in the present case is of a very
different character. It does not prescribe a rule and conditions
for the regulation of the use of property for laundry purposes to
which all similarly situated may conform. It allows without
restriction the use for such purposes of buildings of brick or
stone, but, as to wooden buildings, constituting nearly all those
in previous use, it divides the owners or occupiers into two
classes, not having respect to their personal character and
qualifications for the business, nor the situation and nature and
adaptation of the buildings themselves, but merely by an arbitrary
line, on one side of which are those who are permitted to pursue
their industry by the mere will and consent of the supervisors, and
on the other those from whom that consent is withheld at their mere
will and pleasure. And both classes are alike only in this, that
they are tenants at will, under the supervisors, of their means of
living. The ordinance, therefore, also differs from the not unusual
case where discretion is lodged by law in public officers or bodies
to grant or withhold licenses to keep taverns, or places for the
sale of spirituous liquors, and the like, when one of the
conditions is that the applicant shall be a fit person for the
exercise of the privilege, because, in such cases, the fact of
fitness is submitted to the judgment of the officer, and calls for
the exercise of a discretion of a judicial nature.
The rights of the petitioners, as affected by the proceedings of
which they complain, are not less because they are aliens and
subjects of the Emperor of China. By the third article of the
treaty between this Government and that of China, concluded
November 17, 1880, 22 Stat. 827, it is stipulated:
"If Chinese laborers, or Chinese of any other class, now either
permanently or temporarily residing in the territory of the United
States, meet with ill treatment at the hands of any other
persons,
Page 118 U. S. 369
the Government of the United States will exert all its powers to
devise measures for their protection, and to secure to them the
same rights, privileges, immunities and exemptions as may be
enjoyed by the citizens or subjects of the most favored nation, and
to which they are entitled by treaty."
The Fourteenth Amendment to the Constitution is not confined to
the protection of citizens. It says:
"Nor shall any State deprive any person of life, liberty, or
property without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."
These provisions are universal in their application to all
persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality, and the equal
protection of the laws is a pledge of the protection of equal laws.
It is accordingly enacted by § 1977 of the Revised Statutes,
that
"all persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
The questions we have to consider and decide in these cases,
therefore, are to be treated as invoking the rights of every
citizen of the United States equally with those of the strangers
and aliens who now invoke the jurisdiction of the court.
It is contended on the part of the petitioners that the
ordinances for violations of which they are severally sentenced to
imprisonment are void on their face as being within the
prohibitions of the Fourteenth Amendment, and, in the alternative,
if not so, that they are void by reason of their administration,
operating unequally so as to punish in the present petitioners what
is permitted to others as lawful, without any distinction of
circumstances -- an unjust and illegal discrimination, it is
claimed, which, though not made expressly by the ordinances, is
made possible by them.
When we consider the nature and the theory of our institutions
of government, the principles upon which they are supposed
Page 118 U. S. 370
to rest, and review the history of their development, we are
constrained to conclude that they do not mean to leave room for the
play and action of purely personal and arbitrary power. Sovereignty
itself is, of course, not subject to law, for it is the author and
source of law; but, in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains
with the people, by whom and for whom all government exists and
acts. And the law is the definition and limitation of power. It is,
indeed, quite true that there must always be lodged somewhere, and
in some person or body, the authority of final decision, and in
many cases of mere administration, the responsibility is purely
political, no appeal lying except to the ultimate tribunal of the
public judgment, exercised either in the pressure of opinion or by
means of the suffrage. But the fundamental rights to life, liberty,
and the pursuit of happiness, considered as individual possessions,
are secured by those maxims of constitutional law which are the
monuments showing the victorious progress of the race in securing
to men the blessings of civilization under the reign of just and
equal laws, so that, in the famous language of the Massachusetts
Bill of Rights, the government of the commonwealth "may be a
government of laws, and not of men." For the very idea that one man
may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life at the mere will
of another seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself.
There are many illustrations that might be given of this truth,
which would make manifest that it was self-evident in the light of
our system of jurisprudence. The case of the political franchise of
voting is one. Though not regarded strictly as a natural right, but
as a privilege merely conceded by society according to its will
under certain conditions, nevertheless it is regarded as a
fundamental political right, because preservative of all
rights.
In reference to that right, it was declared by the Supreme
Judicial Court of Massachusetts, in
Capen v. Foster, 12
Pick. 485, 489, in the words of Chief Justice Shaw,
"that, in all
Page 118 U. S. 371
cases where the constitution has conferred a political right or
privilege, and where the constitution has not particularly
designated the manner in which that right is to be exercised, it is
clearly within the just and constitutional limits of the
legislative power to adopt any reasonable and uniform regulations,
in regard to the time and mode of exercising that right, which are
designed to secure and facilitate the exercise of such right, in a
prompt, orderly, and convenient manner;"
nevertheless,
"such a construction would afford no warrant for such an
exercise of legislative power as, under the pretence and color of
regulating, should subvert or injuriously restrain the right
itself."
It has accordingly been held generally in the States that,
whether the particular provisions of an act of legislation
establishing means for ascertaining the qualifications of those
entitled to vote, and making previous registration in lists of
such, a condition precedent to the exercise of the right were or
were not reasonable regulations, and accordingly valid or void, was
always open to inquiry as a judicial question.
See Daggett v.
Hudson, 1 Western Reporter 9, decided by the Supreme Court of
Ohio, where many of the cases are collected;
Monroe v.
Collins, 17 Ohio St. 665.
The same principle has been more freely extended to the
quasi-legislative acts of inferior municipal bodies, in
respect to which it is an ancient jurisdiction of judicial
tribunals to pronounce upon the reasonableness and consequent
validity of their by laws. In respect to these, it was the doctrine
that every bylaw must be reasonable, not inconsistent with the
charter of the corporation, nor with any statute of Parliament, nor
with the general principles of the common law of the land,
particularly those having relation to the liberty of the subject or
the rights of private property. Dillon on Municipal Corporations,
3d ed., § 319, and cases cited in notes. Accordingly, in the case
of
The State of Ohio ex rel. &c. v. The Cincinnati
Gas-Light and Coke Company, 18 Ohio St. 232, 300, an ordinance
of the city council purporting to fix the price to be charged for
gas, under an authority of law giving discretionary power to do so,
was held to be bad, if passed in bad faith, fixing an unreasonable
price, for the fraudulent purpose of compelling
Page 118 U. S. 372
the gas company to submit to an unfair appraisement of their
works. And a similar question, very pertinent to the one in the
present cases, was decided by the Court of Appeals of Maryland in
the case of the
City of Baltimore v. Radecke, 49 Maryland
217. In that case, the defendant had erected and used a steam
engine in the prosecution of his business as a carpenter and
box-maker in the city of Baltimore, under a permit from the mayor
and city council, which contained a condition that the engine was
"to be removed after six months' notice to that effect from the
mayor." After such notice and refusal to conform to it, a suit was
instituted to recover the penalty provided by the ordinance, to
restrain the prosecution of which a bill in equity was filed. The
court holding the opinion that
"there may be a case in which an ordinance, passed under grants
of power like those we have cited, is so clearly unreasonable, so
arbitrary, oppressive, or partial, as to raise the presumption that
the legislature never intended to confer the power to pass it, and
to justify the courts in interfering and setting it aside as a
plain abuse of authority,"
it proceeds to speak, with regard to the ordinance in question,
in relation to the use of steam engines, as follows:
"It does not profess to prescribe
regulations for their
construction, location, or use, nor require such precautions and
safeguards to be provided by those who own and use them as are best
calculated to render them less dangerous to life and property, nor
does it restrain their use in box factories and other similar
establishments within certain defined limits, nor in any other way
attempt to promote their safety and security without destroying
their usefulness. But it commits to the unrestrained will of a
single public officer the power to notify every person who now
employs a steam engine in the prosecution of any business in the
city of Baltimore to cease to do so, and, by providing compulsory
fines for every day's disobedience of such notice and order of
removal, renders his power over the use of steam in that city
practically absolute, so that he may prohibit its use altogether.
But if he should not choose to do this, but only to act in
particular cases, there is nothing in the ordinance to guide or
control his action. It lays down no
Page 118 U. S. 373
rules by which its
impartial execution can be
secured or partiality and oppression prevented. It is clear that
giving and enforcing these notices may, and quite likely will,
bring ruin to the business of those against whom they are directed,
while others, from whom they are withheld, may be actually
benefited by what is thus done to their neighbors; and, when we
remember that this action or nonaction may proceed from emnity or
prejudice, from partisan zeal or animosity, from favoritism and
other improper influences and motives easy of concealment and
difficult to be detected and exposed, it becomes unnecessary to
suggest or to comment upon the injustice capable of being brought
under cover of such a power, for that becomes apparent to everyone
who gives to the subject a moment's consideration. In fact, an
ordinance which clothes a single individual with such power hardly
falls within the
domain of law, and we are constrained to
pronounce it inoperative and void."
This conclusion, and the reasoning on which it is based, are
deductions from the face of the ordinance, as to its necessary
tendency and ultimate actual operation. In the present cases, we
are not obliged to reason from the probable to the actual, and pass
upon the validity of the ordinances complained of, as tried merely
by the opportunities which their terms afford, of unequal and
unjust discrimination in their administration. For the cases
present the ordinances in actual operation, and the facts shown
establish an administration directed so exclusively against a
particular class of persons as to warrant and require the
conclusion that, whatever may have been the intent of the
ordinances as adopted, they are applied by the public authorities
charged with their administration, and thus representing the State
itself, with a mind so unequal and oppressive as to amount to a
practical denial by the State of that equal protection of the laws
which is secured to the petitioners, as to all other persons, by
the broad and benign provisions of the Fourteenth Amendment to the
Constitution of the United States. Though the law itself be fair on
its face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an
unequal
Page 118 U. S. 374
hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material
to their rights, the denial of equal justice is still within the
prohibition of the Constitution. This principle of interpretation
has been sanctioned by this court in
Henderson v. Mayor of New
York, 92 U. S. 259;
Chy Lung v. Freeman, 92 U. S. 275;
Ex parte Virginia, 100 U. S. 339;
Neal v. Delaware, 103 U. S. 370, and
S
Soon Hing v. Crowley, 113 U. S. 703.
The present cases, as shown by the facts disclosed in the
record, are within this class. It appears that both petitioners
have complied with every requisite deemed by the law or by the
public officers charged with its administration necessary for the
protection of neighboring property from fire or as a precaution
against injury to the public health. No reason whatever, except the
will of the supervisors, is assigned why they should not be
permitted to carry on, in the accustomed manner, their harmless and
useful occupation, on which they depend for a livelihood. And while
this consent of the supervisors is withheld from them and from two
hundred others who have also petitioned, all of whom happen to be
Chinese subjects, eighty others, not Chinese subjects, are
permitted to carry on the same business under similar conditions.
The fact of this discrimination is admitted. No reason for it is
shown, and the conclusion cannot be resisted that no reason for it
exists except hostility to the race and nationality to which the
petitioners belong, and which, in the eye of the law, is not
justified. The discrimination is, therefore, illegal, and the
public administration which enforces it is a denial of the equal
protection of the laws and a violation of the Fourteenth Amendment
of the Constitution. The imprisonment of the petitioners is,
therefore, illegal, and they must be discharged. To this end,
The judgment of the Supreme Court of California in the case
of Yick Wo, and that of the Circuit Court of the United States for
the District of California in the case of Wo Lee, are severally
reversed, and the cases remanded, each to the proper court, with
directions to discharge the petitioners from custody and
imprisonment.
