The morning call., 1890-08-26
UNCONSTITUTIONAL.
Judge Sawyer So Decides the
Bingham Ordinance.
Discrimination in Violation Of Treaties with
China and of the Statutes of the
United States.

Judge Sawyer Of the United States Cir
cult Court yesterday handed down his de-
cision on the validity of the Bingham or
dlnanee, which sought TO remove China
town bodily from its present locality to a
certain part Of South San Francisco, speci-
he'd IN the measure, and known as Butcher
town. The decision was in the cases of
Lee Sing and Sing Tee Quong, which were
used to test the ordinance. The decision
pronounced the ordinance unconstitutional
and void. Judge Sawyer said:
Article XIV, Section J. of the Constitution Of
The United States reads as follows:
section l. All persons born or naturaliZed in
tle United States and subject 10 the jurisdiction
tneieoi are cllizens OF Tie United States ana
oil the Stale wherein they reside. No State shall
make OF enforce any law which shall abridge the
privileges or immunities Of The citizens of the
onlted States, nor shall any State deprive any
PERSON OF life, liberty or property without due
process OF law nor deny TO any person the equal
protection OF the laws.
Article VI OF The Burlingame treaty provides:
THAT Chinese subjects visiting OF residing III The
United States shan enjoy the same privileges,
1mMunities aud exemptions in respect TO travel
or residence as may there be enjoyed by The Gil
liens or subjects OF tie most favored nation"
Section 1877 Of tie Revised Statutes provides
as iollows: "All persons within the jurisdiction
OF The United States shall have The same right in
every state aud Territory 10 make and enforce
contracts, to sue parties. give evidence, and 10
Inc iu!l and equal benefit OF all laws and pro-
erty, and shall be subject 10 like puDiSlments.
pains, penalties, taxes, licenses and exaclions OF
every Kind. and TO no other"
Article /, Section 2 OF the national Constitu-
tlon provides that "the United States C0nsiitu-
ton and The laws Of the United States, which
shall lie made In pursuance thereof, and all
treaties made or which shall be made under the
authority of The United States, shall be the SUI
pieme 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 con.
trafy notwithstanding"
he discrimination against Chinese and the
gross inequality OF the operation upon the
Chinese OF this ordinance In violation OF the con.
slltullOndl treaty and constitutional provisions
cited, Is manifest upon It's face that ain unable
TO comprehend how this discrimination and IN
equality CT application and the consequent vio-
latl0n OF tie express provisions OF the consilu-
tional treaties and statutes OF the United States
can fail 10 be borne ill mind 10 every intelligent
person, be he lawyer or layman.
The operation OF Tie ordinance is not aimed at
any particular vice or any particular uuwhOle-
come immoral occupation or practice but 1t
declares IT TO be unlawful for any Chinese to
locate reside or carry on business within the
city and county OF San Francisco, except in that
district OF he State, city ana county hereinafter
provided for their location"
After further quoting at length the pro-
visions of the ordinance, Judge Sawyer
continued:
The obvious purpose OF this order is 10 forelbly
drive out whole community OF twenty odd
thousand people, old and young, male ana female
citizens OF the United States, born in The
moral, good, bad and indiffei ent, without respect
10 circumstances or conditions, from whole
section OF the city which they have inhabited
aud III which they have carried on all kinds Of
business, mercantile, manufacturing and other
wise, Tor more than folIy years. Many of them
were born therein In their own houses, and are
citizens OF the United States entitled to all the
rights and privileges of the United States that
are enjoyed by any other citizen OF the United
States. They all, without distinction or excep-
ton. are 10 leave their homes and properly Occu-
pied by them Tor nearly half a century and
go either out OF The city and county OF TO sec
ton with prescribed limits within he city and
county not owned by them or by the city.
This, besides being discriminating against
them aud unequal In its operation upon them
and all others, Is simply an arbitrary eonfsca-
lion OF their homes and property, and depIiylng
them without due process or any process OF law,
and what little there would be left after aban-
doning their homes and various places OF Dusl-
ness would again be coniiscaled in compulsorily
buying lands in The various places assigned 10
them, and which they do not own, upon such
exorbllant terms as The present owners, with
The advantage given them, would certainly ini.
pose. There would be no room for freedom Of
action IN buying again. They would be com.
PEELED TO take any lands upon any terms arbi-
trarily proposed, or go outside The ely and
county OF San Francisco.
That this ordinance is a direct violation OF the
Constitution of lie United States aud OF The eX-
press provisions Of the several treaties with
China aud OF Tue statutes OF the United States Is
SO obY ious that shall not waste more time or
words in discussing 1t. To any reasonable, H.
lLiiieans and well-balaneed mind discussion or
argument would be wholly unnecessary and
supeTfuous. To those minds which are so con-
stiluted that the iuvalidity OF this ordinance is
not apparent upon Inspection discussion or
argument would be useless.
The authority upon which this order is based
is not within any legitimate police power of the
CRY. See IN lie Tie 10y. | saw 472; in re All
FODg. 8 Saw, IA; Chy Lung vs. Freeman, 90
U. s., 20; In re QuOng 600 saw, 531.
Let the order be adjudged to be void rs being
in direct conflict with the Constitution treaties
and statutes OF the United States, and let the
petitioners be discharged.