Daily Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1876-1884, 1880-08-19
cAINAMEN LIABLE FOR LICENSE.
Judge sspulveda Declares the Act Of the Lsgis.
lature Inhibiting Such L csnss in Conf lot
With the Constitution of the United States.
Superior Court, Los angeles
County.
PEOPLE
VS.. SOn Appeal.
QUONQ ON LONG.

PEOPLE
, VS.. ION Appeal.
QUONa ON LONG.
OPINION.
The appeal in this case is quite
Informal in several respects, anC
for that reason must be dismis sed
However, as counsel desire that the
Court should put at rest questions
which affect many persons, and the
revenue of the county, the Court
will pass upon the merits Of the
case. 1t may be proper to state
that the demurrer was not well
taken, because the objections made
to the com plant in the demurrer
did not appear. the face Of the
complaint. There was no aver
ment, in the complaint, that the
defendant was Chinamau, or that
he was an alien not eligible to be
come an eleclOr of this State, and
thereby exempt, as pretended by
defendant, from obtaining q license.
The defendant should have inter-
posed this defense In his answer;
aud If 1t shielded him at all, and he
WAS nevertheless convicted, he
could avail himself of 1t in arrest of
judgment. 1t is also very doubtful
whether an appeal lies from an or
der simply sustaining a demurrer
The decisions are conflicting. (Peo.
pie vs.. All Won 80 CA. 6U4; People
vs.. Clarke, AZ Cal. 622 aud People
vs.. All Kim, Al Gal. 1874 1t thluk
1t would be the better practice 10
have final judgment entered upon
the demurrer, aud then appeal fir, m
the Judgment. In the present Case
there was no judgment, and al
though the demurrer 10 the com.
plant was sustained, for all the
record discl0ses. the defendant may
yet be In custody.
| The complainant alleges q viola.
ton on the part of the defendant.
of section 1881 of the Politica' &c lode,
In selling liquor in less quantity
than Que quart without u iicense rs
prescribed by SAID section. The de
fendaut justifies under All Act of
the Lsgisla ure of California, APP
proved April IL. 1880, which reads
AZ follows:
"Sectiou mo license to trans.
actany business or occupation shall
Ue granted or issued by the State,
or any county, or city, or city and
county, Or town, or mu liciDal COR
pora,ion,to any alien n G BILE to
become an electOr OF tuis SAFE.
''s3ec. 2 "A VOCATION Of the pro
visions Of section one of this Act
shall be deemed a misdemeauor,
aud be punished accordingly. (Sta.
OF Cal. 1880, p. 80 The same Leg
islature passed r. veral we'll known
Acts, in pari materia. all leveled
against the subjec OF Chiua of the
Monaghan race. Some of these
Acts have already been passed upon
by the Federal Courts, and the cor
rectness of the conclusions reached
by those tribunals cannot lie
doubted.
TheseActs ofthe State Legislature
clearly evince the motive which
instigated them The intention of
the Legislature was to prohibit the
class mentioned from Lransacting
any business, or following any au-
thorized occupation, by withhold.
ing from such persons license to le-
glLimate their business.
To exclude the Chinese now liv-
ing in the country from all busi-
ness and occupations which are car.
ried on freely by citizens or sub.
jects of other nations, is to prevent
them from enjoying the same priv.
ileges rs "are enjoy ed by the citi-
Gems or subjects Of the most favored
nation Such discrim nation is
In violation of the With aud VIII
articles Of the Treaty with China,
commonly known as the Burlin-
game Treaty. The Fourteenth
Amendment Of the Constitution of
the United States provides that
ono State = shall deny to
any person within its Jurisdiction
the eQnat protection of the laws"
To subject the Chinese to exclusion
from all business and occupations
while aliens Of all European ma
tiOns under the same circu instances
are exempt from any such discrIm-
Ination,is to deny them the "eQuaI
protection of the laws" Consider
lug the provisions Ut the new Con.
stitution. and the several Acts of
the last Legislature concerning the
Chinese, it Is clear that their object
was to exclude them from the
State. Whatever opinion we might
have as to the prOpriety and policy
| of this legislation IN other respects,
we certainly cannot hesitate as a
Court to declare such measures
contrary to the treaty with China,
aud beyond the power Of the State
to remedy such evil by legislation
without encroaching upon the pow
ers of thu Federal Government.
However much in accord these
Acts Of the Legislature may be-
with our State Constitution, they
undoubtedly contrOvene the Con-
stitution of the United States in
matters in which the latter is su
preme.
L. results that the Act In ques
ton intended AS a prob bitiou di
rected against the Chinese, must
fall to the ground and be consider
ed void, because 1t violates the
treaty Of the nation, and the Con
stitutiOn OF the United States, the
supreme law OF the laud. ''Th,s
Constitution, aud the laws Of tn.
United States which shall be made
in pursuance thereof. and all urea
ties, made or which shall b- made.
uuder the authority Of the United
States, shall he the supreme law Oi
, the land; and the Judges 10 every
state shall be bound thereby, any
thing in the Constitution or law,
(: of any State to the contrary not
, Withstandiug" Art VI, Sec. 8
Constitution of the United States.
The defendant must pay u licens.
as prescribed by Section 1881 Of the
+ Political Code. and he canno