OpenJurist

GANDOLFO f1. HARTMAN.

181

GANDOLFO f1. HAR'1'J\fAN

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(Cirouit Oourt, B. D. California. January 25,1892.)
COVENANTS IN

A covenant in a deed not to conveyor lease land to a Chinaman is void, as contrary to the public policy of the government, in contravention of its treaty with China, and in violation of the fourteenth amendment of the constitution, and is not enforceable in equity.

POLICy-SPECIFIO PERFORMANCE.

In Equity. Bill for an injunction. Denied. Blackstock & Shepherd and BickneU & Denis, for complainant. J. Marion Brooks, J. Hamer, and E. S. HaU, for defendants. R,oss, District Judge. The amended bill in this case shows that ou., the 22d of March, 1886, one Steward, for Ii valuable consideratiori,conto the. complainant a portion of lot 2, block 47, fronting on East Mili'ri street iri the town of San Buena Ventura, Ventura. county , of this state, together with a perpetual right of way over an adjoining alley" Thedeed also contal,ried the following: . ' , ' ," ,. "It ill alsoundel'stoodand agreed by and., between the parties hereto, their' heirs lind af:;signs, that the party of the part shall never, without,'the party.of ipe second part, his heirs or assigns,rent any of the jngs owned by said party of the first part, and fI'ontrng Msai.d: East Malti street, to a Chinaman or Chinamen. This agreement shall' only .apply to that part of lot 2, block 47, aforesaid, lying north of the descriQed, and fronting on said East Main street. And said party of th\'. second part agrees for himself and heirs that he will never rent any (;If the property hereby conveyed to a'Chinaman or Chinamen." The deed was duly recorded in the county in which the property is' situate, andsubseql1ently the portion of the lot retained by Steward was purchase<i of him by the defendant Hartman, who was thereafter' about 10 lease it to the defendants Fong Yet and Sam Choy, who. are China,men, when the present suit was commenced to him from so doing. The federal courts have had frequent occasion to declare null and, void hostile and discriminating state and municipallegislatiori aimedat Chinese residents of thiscouIitry. But it is urged on behalf of the complainant that; as the present does not preBent a case oflegi:;;latlon at all, it is not reached by the decisions referred to, and that it does not come within any of the inhibitions of the fourteenth amendment to the consti-' "tution of the United States, which, among other things, declares that no state shall "deny to any person the equal protection of the laws." ThiEr inhibition upon the stare, as said by Mr. Justice FJELD, iIi the of Ah Kow v. Nunan, 5 Sawy. 552'!Applies to allthe instrumentalities and agencies employed in the admin,and judicial' depart-, istration' of its government: to its executive, ments; and. to the subordinate legislative bodies of countieli and cities.', And the equality of protection thus jassured to every oue whilst within the, United: whate.ver country he maY come. ,or,of whatefer,T8Ce or:eolor he:

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vol. 49.

may be, Implies that not only the courts of the country shall be open to him on the same terms as toall.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 laidupon him which are not equally borne by others. ... ... *" . ' ,

It would, be a very construction of the constitutional amendment in question ando! the decisions based upon it, and a very restricted applicatiou of the broad principles upon which both the amendment and the decisions proceed, to hold that, while state and municipal legislatures are 10rbidden to discriminate ngainst the Chinese in their legislation, a citi2:en of the state may lawfully do so by contract, which the courts may enforce. Such a view is, I think, entirely inadmissible. Any result" inhibited by the constitution can no more be accomplished by contract of individual citizens than by legislation, and the courts should inb tJidl'eenforce the; one than the other. This would seem to be .' ".,.. ,. , very clear. .... Moreover, it. is by the between the United States and China of November 17 t 1880, provided that- . ,
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"Chinese subjects, whether proceeding to the 'United states Ill! teachers. stUdents,. mllrchaijta, or together with their body and household servaIlts, a.nd who are now in the Unitell States. shall and come of their own free will and accord. and shall be accordell IlI1 tbetigllts. immunities, and exemptions which are accorded to the cltizensand SUbJects of the most favored nation." Article 2·. (22 U. 8 .· 8t. p. 18.) ... "The Intercourse of this cOuntry with torelgn nations and its policy in regard to them," said the supreme court, speaking through Chief Justice TANEY, in Nennett v. Ohambers, 14 How; 49. "are placed by the com,titution of the United States. III the l\ands of the governmtmt. an,d Jtl:l decisions upon are obligatory upon every CItizen of th.e Union. He is bound to be at war WIth the nation against Which the war-making power has declared wllr. and equally bound to COlD mit no act of hOiltilityagainst a nation witlnvhlchthe government is in,amity and f\'il'nl!:lhip. This principle is universally acknOWledged by the laws of natiuns. It lies at the foulldation of all governments, liS there could bl' no social order or pl'IICeflll relations between of different cOlltltries itt It ill, however. lIJore emphatically true in relation to. the cltizl'uS of the Unitffi Stat.-s. For, as the sovert-ignty resides In the' peopll;l, ev..ry citizen is a portiuII of it, and Is himself persollally bound by the iaws which the reprl'sentat'ives of the sovereignty may paSS, or the trt'atiesinto which they lIJay enll!r1 Within the scope of their dele!{l\tt'd authurity; .And, when that authority has rJlight..d its faith to an..ther natil.lutltat there shalllJe ,peace and friendship ltetwe..n the citIzens of the two countfies, evel'y cit.lzen oltha, United States is equally and pp,rsonally pledSed., The compact is made by the department of the government upon which be 111IDHelf has agre..d to confer the power.. It is bis own personal compactllS'a portion of the so'Verelgnty In whose behalf It Is made. And he can do no act nor enter Into any agl'eementto promote or encourage revoJtor hostilltiesagainst tbe territurle80f a ("ountr, with Which our govern'1ltlntis ple<tglld by treaty to beat peaet', without the br...ach .of his duty as breach. of tbefaith .pledged·to the foreign nation. And, if be does so. he cannot claim· the aid of a 'court ot' .j us,ticeto'.enforce it. Th& appellants say, tn their contract, tha.t·they: were induced toadv8nce the money

183
be .preserved withontobedienee to our own laws, nor :social order presel'ved if the judicial branch of the government countenanced and sUlltained contracts made in violation qf the duties which the law imposes, or in contravention of the known and established policy of the political department, acting within the limit of its constitutional power. " ",

by the desire to promote the cause of freedom. BntOul' own freedomcl\nnot

This was said in a case where it W8J!sought to. enforce a contract made in this country after Texas declared itself but ,before its in'dependence had been ac'4,nowl,edged ,1>Y the United ,States" whereby the .complainants agreed to furnish,and underwbich they<iili furnish, 'money· to a general in theTexanarniy, to enable him to raise and .equip troOps.to be Mexico." Hut the case is, 'In my opinion, 'equally apPlicable it is sought to .enforCe;anagreement ,nui:de contrary to tbe pUblio p61ic;:y oftbegovern.ment, in, contra one 'of its, and, in nrip:eipleembodied in itscoJ1stitution. Such a contraetis abeQlutlllyvoid:,

andshtnjld 'not be enforced in

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Code Civil Proc. Ky. 5 sale by proceedings iD chanCery of real jointly by tw;o or; perllons, when the same caDnot be divided witho,l:lt lOa,terially ,iD1paiP l1 i Its vlClue, even thougl1 some of the ownerll are infants or of unllOund mind. He!iL; that a sale thereunder of an infant's interest on appli· . cation:.<of Its, statut.ory guardian con"eY8' ,abllolute title when the oourt finds that the requillite faotill exist. Powm'v. Powm'. (Ky.) 15 S. W. Rep. 523, followed.
OJoPAR" , . ' , 'l'IBS.

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Where a part. owner of adillt1llery joipsa ,number of osso.elates .in a contraot. purohase the whole. and for that purpose a/p.:ees to conveyhiB existing interest therein,and afterwards, being ready,and,wllling to ,perforlll his contract, joins . other, vendors in I a SU,I fpr specific performance, he is a proper. party . plBintift. and cannot be conllidered a 'defendant· for the' purpose of destroying tile , , 'diversity of citizenship necessa1'1 to maintain. the,uit in 110 federal court
SPBOIIl'IO. PB'RlI'OmUNOlli- BTOClEOIl' OO1U'OR4TION.

... BAK....X;NOUXBRANCBB.

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. A clause in a contract ,fo, the, purchase 01 all .the stock 01 a distillery company may be specificall.y enforced'against the purchas61's when it appesl'8t1iat ltwas. as.all to allOUre the pertoo:mance of tbe Dlain atipulareal aD(Hllallt. . tioD.whicb wall forthe transfer of

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'pge on the lands when it .Pl)lilI\rS y!-at,

:Aveudee cannot avoid a llpeolilc ]lertOnDBnce of biS do1i.tract· bedause ofa mort,agre,ament been for the, fOr

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