15 RB LEE SiNG.
In re In re
Too QUAN et ale
(Cf.rcuf.t Court, N. D. CaUjornfa. August 25, 1800.)
MUNICIPAL CoRPOBATlONS-ORDlNANOEs-CONSTITUTlOIUL LAW.
The ordinance enacted by the city of San Francisco, known 8S the "Bingham Ordinance, "which requires all Chinese inhabitants to remove from the portion of the city theretofore occupied by them, outside the city and county of San Francisco, 01' to another part of the city and county is void as being in direct conflict witb the constitution, treaties, and statutes of the United States, particularly iu, the sense that it is discriminating and unequal. in its operation, and an arbitrary con:lillcation of property without due procell8 of law. . . .
At Law. The ordinance under which the arrest was made is as follows: I' Order No. 2190 designating the location and the district in which Chinese sball reside and carryon business ill this city and county. "The pe9ple of the city and county of San Francisco do hereby as follows: . "Section 1. It is hereby declared to be unlawful for any Chinese to locate, reside, or carryon business within the limits of the city and county of San Francisco, except in that district of said city and county ,hereinafter' prescribed for their location. "Sec. 2. The following portions of the city and county of San Francisco are hereby set apart for the location of all Chinese who may desire to reside;: locate, or carryon business within the limits of said city and county of San Francisco, to-wit: Within that tract of limd described as follows: Commencing at the intersection of the easterly line of Kentucky street with' the south-westerly line of First avenue; thenM south-easterly along the southwesterly line of First avenue to the north-westerly line of I streetjtbellC8 south-westerly along the north-westerly line of I street to the south-westerly' line of Seventh avenue; thence north-westerly along the south-westerly line, of Seventh avenue to the south-easterly line of Railroad avenue; thence north-easterly along the south-easterly line of Railroad avenue to Kentucky street; thence northerly along the easterly liDe of Kentucky street to. the south-westerly line of First avenue and place of commencement. "Sec.8. Within sixty days after the passage of this ordinance all Chinese' now located; residing in or carrying on business Within the limits of said city and county of San ]j'rancisco IIhall either remove withontthe limits of said city and county of San Francisco or remove and locate within the district of said city and county of San Francisco herein provided for their location. "Sec. 4. Any Chinese residing, locating, or carrying on business within the limits of the city and county of San Francisco contrary to the provisions of this order shall be deemed guilty of a misdemeanor, and upon conviction thereof shllll be punished by imprisonment in the county jail for a terin not exceeding six 'months. "Sec. 5. It is hereby made the duty of the chief of police and of every member of the police department of said city and county of San Francisco to strictly enforce the provisions of this order. , "And the clerk is hereby directed to advertise this order as required by law. ' ' "In board of supervisors, San Francisco, February 17, 1890. "Passed' for printing by the following vote: Ayes-Supervisors Bingham,
. Wright. Boyd, Pescia, Bush, Ellert, Wheelan, Becker, Pilster. King well, Barry, Noble." Tkos. D. Riordan, for petitioners. John L Humphreys, for the City. Before SAWYER, Circuit Judge. SAWYER, J. The petitioners are under arrest for the violation of order called the "Bingham Ordinance," requiring all Chinese inhabitants to remove from ,the portion of the city heretofore occupied by theI;ll, outside the city a.nd county, or to another designated part of the city and county. . . Article 14,§1, of the constitution of the United States reads as follows: . "Section 1. All persons born or naturalized in the United States, and sUbject to the jurisdiction thereof, are .citizens of the United States, and of the statp, whllrein they reside. No state shall make or enforce any law which shall auridge the privileges' or immunities of Citizens of the United States; norshlUl any state deprive any person of life. liberty, or property, withollt due'procesB of law, nor deny to any perilon within its jurisdiction, the equal protection of tpe la ws." of tpe Burlingame treaty with China, provides, that SUbjects, or residing in the United states, shall enjoy the same privilt>ges, immunities and exemptions, in respect to travel or re!lidence, as may there be enjoyed by the or subjects of the most favored nation. " 16 St. 740. Section 1977 of the Revised Statutes of the United States provides as follows: "All ,persons within the jurisdiction of the United States shall have the Bame, in every state and territory: to make and enforce contracts, to . be parties, give evidence"and to the full and equal benefit of all laws and p.rQceedings for the security of persons \\nd property as is enjoyed by white aitizeos,and shall be subject to like punishment, pains, penalties, taxes. licenses. and exactions of every kind, and to no other." " And article 6·.subd.2,"of the national constitution provides. that, "this constitution, and the la"ivs of the United States which sha:ll be made in pursuance thereof, and. all treaties made, or which shall be made, under th!3authority of the United States, shall be the supreme law of the land; and the judges in every state shall· be bound therehy, anything in the constitution or laws of 'any state to the contrary notwithstanding." . The discrimination a.gainst Chinese, and the gross inequality of the C?peration of this ordinapce upon Chinese, as compared with others, in violation of the constitutional, treaty, and statutory provisions cited, are manifest upon its face, that I am unable to comprehend how this dis_ crimination and inequality' of operation, and the consequent violation of the express provisions of the constitution, treaties and statutes of the Vnited States, can fail to be apparent tathe mind of every intelligent person, be he lawyer or layman. The ordinance is not aimed at any particular vice, or any particular l,lnw4plesoPle or immoral.occupation,or . but it declares it "to practic.e, . i '
IN RE LEE SING.
be unlawful for any Chinese to locate, reside or carry on business within the limits of the city and county of San Francisco, except in that district of said city and county hereinafter provided for their location." It further provides that "within sixty days after the passage of this ordinance all Chinese now located, residing or c.arrying on business within the limits of said city and county of San Francisco, shall either remove without the limits of said city and county of San Francisco. or remove and locate within the district of the city and county of San Francisco, And again, section 4 provides that herein provided for their "any Chinese residing, locating. or carrying on business within the limits of the city and county, contrary to the provisions of this order, shall be deemed guilty of a misdemeanor, and upon conviction thereof, 15hall be punished by imprisonment in the county jail for a term not exceeding six months. Upon what other people are these requirements, disnbiliti,es and punishments imposed? Upon none. The obvious purpose of this order, is, to forcibly drive out a whole community of twenty-odd thousand people, old and male and female, citizens of the United States, born on the soil, and foreigners of the Chinese race, moral and immoral, good, bad, and indifferent, and without respect to circumstances or conditions, from a whole section of the city which they have inhabited, and in which they carried QJ} all kinds of business appropriate to a city, mercantile, inailUfacturirig, . and otherwise, for more than 40 years. Many of them were born there, in their own houses, and are Citizens of the United States, to all the rights, :and privileges under the constitution and laws of the United States, that are lawfully enjoyed by any other citizen of the' United States. They all, without distinction or exception, are to ,their homes and property, occupied for nearly half a century, and go, either out of the city and county, or to a section with prescribed limitR, within the city and county, not owned by them, or by the city. This,besiaes against the Chinese,and unequal in its operation as between them and all others, is simply an arbitrary confiscation of their homesulld property, a depriving them of it, without due process or any process of law. And what little there would be left after abandoning their homes, and various places of business would again be confiscated in compulsorily buying lands in the only place assigned to them. and which they do not own, upon such exorbitant terms as the present o\\'ners witli the advantage given them would certainly impose. It must be that or nothing. There would be no room for freedom of action, in buying again. They would be compelled to take any lands, upon:any terms, arbitrarily imposed, or get outside the city and county of San Francisco. . That this ordinance is a direct violation, of. not only, the express provisions of the constitution of the United States, in several but also of the express provisions of our several treaties with China, and of the statutes of the United States, is so obvious, that I shall liot waste more time, or words in disctlssing the matter. To any reasonably and well-balanced mind, discussion or argument would be wholly