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less there is in the will, or in some codicil to it, execution of State laws which were unconstitua clear indication of an intention on the part tional. In speaking on this subject, the Nation of the testator that any of his devisees are not cites the case of Yick Wo, and gives a very to have the enjoyment of the property he has interesting summary on this subject, which we devised to them until they attain twenty-five, print. but that some other person is to have that en

“Now that it is settled that the controversy joyment, or unless the property is so clearly over the registration laws of South Carolina taken away from the devisees up to the time will be carried up to the Supreme Court for a of their attaining twenty-five as to induce the a final decision on Judge Goff's ruling, it is court to hold that, as to the previous rents and worth while to recall the judgment of that triprofits, there has been an intestacy, the court bunal in the case of Yick Wo v. Hopkins, nine does not hesitate to strike out of the will any years ago, as showing its view of the scope of direction that the devisees shall not enjoy it in federal interference in matters of State and full until they attain the age of twenty-five even municipal legislation. years.” The point seems, in the first instance, “ Yick Wo, a native of China, went to Calito have been rather assumed than decided. It fornia in 1861, and engaged in the laundry was apparently regarded as a necessary conse- business, which he carried on from the first in quence of the conclusion that a gift had vested, the same premises, under licenses from the fire that the enjoyment of it must be immediate on and 'health officials. In 1880 there were about the beneficiary becoming sui juris, and could 320 laundries in the city and county of San not be postponed until a later date unless the Francisco, of which about 240 were owned testator had made some other destination of and conducted by subjects of China. Of the the income during the intervening period. It whole 320, about 310 (Yick Wo's among them) is needless to inquire whether the courts might were constructed of wood, like nine-tenths of have given effect to the intention of the testa- the houses in the city. The capital thus intor in such cases to postpone the enjoyment of vested by Chinamen was not less than $200,000 his bounty to a time fixed by himself subse- and they paid annually, for rents, licenses, quent to the attainment by the objects of his taxes, gas, and water, about $180,000. bounty of their majority. The doctrine has

In 1880, ordinances were enacted making it been so long settled and so often recognized unlawful for any person to establish or carry on that it would not be proper now to question it. a laundry within the corporate limits of the city Wickens, V. C., when this case

came before and county

without having first obtained the him in 1871, intimated an opinion that the rule consent of the board of supervisors, except the in Saunders v. Vautier was inapplicable where

same be located in a building constructed the beneficiaries were charitable corporations either of brick or stone ;” and punishing any or the trustees of charities. I have carefully violator of the ordinance by a fine of not more considered the reasons which he adduced for than $1,000, or by imprisonment for not more this opinion with the respect due to any opinion than six months, or by both. Yick Wo and 200 of that learned judge, and certainly with no in-countrymen who carried on their business in disposition to give effect to the intention of the wooden houses, under licenses from the fire testator if I could see my way to do so. But I wardens and health officer, petitioned the am unable to find any sound basis upon which supervisors for permission to continue in the a distinction can be rested in this respect be same premises which they had been occupying tween bequests to charities and those made in in some cases for more than twenty years.

All favor of individual beneficiaries.

such petitions of Chinamen were denied. At

the same time, all petitions of laundrymen who So much has recently been said about the de- had wooden buildings, but were not Chinese, cision of Judge Goff over the registration law of were granted, with a single exception. Scores South Carolina that it should be remembered of Chinese laundrymen were then arrested for that many cases have arisen where federal carrying on business without the required legal judges have interfered with or prevented the consent, and their business was practically ruined. Yick Wo was tried in a police court, to regulate laundries with a view to the protecfound guilty of violating the ordinance, and tion of the public against such dangers as those sentenced to pay a fine of ten dollars, and in of fire, but the federal court found nothing in default of payment to be imprisoned at the rate the ordinances under review which pointed to of one day for each dollar of fine until the fine such a regulation. On the contrary, the supershould be satisfied.

visors were granted a purely arbitrary power. “The case was carried to the State Supreme Yick Wo had complied with every requisite Court, which sustained the local ordinance. deemed necessary by law for the protection of Appeal was taken to the federal Supreme Court, neighboring property from fire or as a precauwhich pronounced judgment on the roth of tion against injury to the public health. No May, 1886, the late Justice Matthews deliver- reason whatever except the will of the supering the opinion. The court reversed the judg- visors was assigned why he and his two hunment of the State court, and rested its decision dred fellow-countrymen should not be permitted upon that clause of the fourteenth amendment to carry on their business in wooden buildings to the federal Constitution, which says: while eighty others not Chinese subjects were

"Nor shall any State deprive any person of allowed to carry on the same business under life, liberty, or property, without due process similar conditions. The fact of discrimination of law; nor deny to any person within its juris against the Chinese was admitted, and no readiction the equal protection of the laws.' son for it could be imagined except hostility to

“This provision was held to apply equally to their race and nationality. Yick Wo and other Chinamen in like case, be

With reference to the principles that govern cause the treaty between the United States and such cases, the Court said: China guarantees to the latter's subjects in this country the same rights, privileges, immunities,

“The cases present the ordinances in actual and exemptions as may be enjoyed by the citi operation, and the facts shown establish an zens of the most favored nation; and the Re

administration directed so exclusively against vised Statutes provide that all persons within

a particular class of persons as to warrant and the jurisdiction of the United States shall have require the conclusion that, whatever may have the same right in every State and territory to been the intent of the ordinances as adopted, make and enforce contracts, to sue, be parties, they are applied by the public authorities give evidence, and to have the full and equal charged with their administration, and thus benefit of all laws and proceedings for the se- representing the State itself, with a mind so curity of person and property, as is enjoyed by unequal and oppressive as to amount to a white citizens, and be subject to like punish- practical denial by the State of the equal proment, pains, penalties, taxes, licenses, and ex- tection of the laws which is secured to the actions of every kind, and to no other. It was petitioners, as to all other persons, by the broad contended by Yick Wo's counsel that the and benign provisions of the fourteenth amendordinances for the violation of which he was ment of the Constitution of the United States. sentenced were void on their face, as being Though the law itself is fair on its face and imwithin the prohibition of the fourteenth amend partial in appearance, yet, if it is applied and ment; and, if not so, that they were void by administered by public authority with an evil reason of their administration “operating un- eye and an unequal hand, so as practically to equally, so as to punish in the present petition- make unjust and illegal discriminations between ers what is permitted to others as lawful, with persons in similar circumstances, material to out any distinction of circumstances -- an their rights, the denial of equal justice is still unjust and illegal discrimination, it is claimed, within the prohibition of the amendment. The which, though not made expressly by the ordi- discrimination is therefore illegal, and the pubnances, is made possible by them.' This lat- lic administration which enforces it is a denial ter position was sustained by the Supreme of the equal protection of the laws and a violaCourt.

tion of the fourteenth amendment of the Consti“The Supreme Court of California had held tution. The imprisonment of the petitioner is that the city had the right to make ordinances therefore illegal, and he must be discharged.”

This seems to be a broad assertion by the policy, and it is essential to its existence that highest court in the land of the power to inves- each of these departments shall be independent tigate the workings of any local law, and to in- of the other. The division is fundamental and terfere for the protection of a citizen against organic. It would be just as dangerous to its the unjust administration of any statute. The stability for the judicial department to override South Carolina registration law requires any the others as for the executive or legislative man whose name has never been on the list to departments to do so. Hence, while the right make an affidavit setting forth his full name, of the judiciary to pass upon the constitutionage, occupation, and residence when the act of ality of the laws is undoubted, it has that right 1882 was passed, or at any time thereafter when simply as an incident to its protection of private he became old enough to vote, “and the place rignts. It has not that right as a mere means or places of his residence since the time when of sealing abstract questions; and even in the he became entitled to register," and this must be enforcement of private means of settling abstract supported by the affidavits of two "reputable" rights it has not the power to interfere with the citizens who were each twenty-one years old in discretion vested in the other departments in 1882, or at the time when the applicant became the exercise of the political powers of those deentitled to register. The registrar is given partments. It seems to me that it is a dangerous authority to determine whether the citizens who encroachment upon the prerogatives of the make the supporting affidavits are "reputable." other departments of government if the judiciary If it should be established that this discre- be intrusted to exercise the power of interfering tionary power has been abused, the decision in with the holding of an election in a State. If the case of Yick Wo would indicate that the the supervisor of one county can be enjoined Supreme Court of the United States might from the perforinance of the duties imposed claim the right of the federal authorities to in- upon him by the election laws of the State from terfere.

whom he holds his commission, those of the Chief Justice Fuller of the United States

other counties can be also. Supreme Court, with Judges Hughes and Sey

“ Thus a single citizen in each county (and mour, constituting the Circuit Court of Ap- in the case at bar he is not even a qualified peals, recently at Richmond, Va., overruled the voter) can enjoin an election thoughout the injunction granted by Judge Goff to prevent entire State, and thus deprive thousands of the election of the constitutional convention in their rights to vote. If a court has power to South Carolina on the principle that it was not do this, free elections are at an end. If elecwithin the province of the Federal judiciary to tions are improperly held, their are appropriate interfere in the conduct of elections when there means provided by law for questioning their is no evidence to show that the constitutional results, and remedying wrongs, without the rights of a citizen have been infringed, or that exercise of this dangerous power by the courts. the matter in issue has anything to do with the A candidate who has been defeated may confederal election and when it does not properly test ; a voter whose right to register has been distinguish between protection and privilege. denied may proceed to compel the enforcement While the court might afford relief in the case

of that right, and these privileges give what the of an individual, the injunction in question Legislature deem sufficient protection to the comprehended more. Judge Hughes read the injured; but, in my judgment, one citizen opinion of the Court, which is a clear and cannot, under pretense of righting his own emphatic determination of the rights conferred wrongs, disfranchise others. I do not think a by the Constitution and is an explicit expres- court has jurisdiction to interfere by injunction sion of the true functions of the various depart- or otherwise the enforcement of laws by officers ments of government. On this subject Judge holding and deriving their powers from these Hughes says:

laws; certainly not to the extent in which it is “The division of our government into the attempted to be done by this bill.” legislative, executive and judicial departments By this decision it is clearly set forth that is a distinguishing feature of our American I elections in this country are the business of the people and that it is not the province of the are now living. In May, 1892, Mr. Cantoni federal courts to interfere with or hamper in told her that he had a wife living and that their any way the right that so belongs to the citi- marital relations would have to cease. zens, for as Judge Hughes says, once the power At this stage a son-in-law of the defendant, to do this is assumed, “ Free elections are at an whose name is not given, came to Mr. Cantoni's, end."

and she charges the two with having conspired

to get rid of her. The conspiracy was to get A case which has aroused considerable in- her to go with the children to California, in the terest was argued before the Court of Appeals

belief that an account of her death would soon in the early part of June. It is undoubtedly follow. She, however, lived to come back and one of the most novel causes that has ever been

bring the present action, and she claims, on acargued before the court of last resort. The case

count of her present 'miserable and wrecked was the outcome of suits brought by Elser C. life,' $100,000 damages. The plaintiff also Foster against Salvator Cantoni. The facts of demands $70,000 more for alleged services for the matter appear as follows:

the defendant as his house-keeper for seven “According to her statement, Mrs. Foster,

years. as she calls herself, has five daughters depen- “ The answer to the complaint is a general dent upon

her. Three, she says, are her denial of the allegations in the complaint. It daughters by a husband from whom she has is asserted that the defendant is not only a obtained a divorce and the remaining two are wealthy Italian banker, but that he has been the defendant's children.

specially honored by the King of Italy in being “Her present sole income, as she gives it, is knighted and made a cavalier of the Order of derived from keeping a boarding house. On the Crown. As the story goes, he was a courier the other hand, it is alleged, the defendant is a in his younger days in Italy, and acted as courier banker of large wealth. Mrs. Foster says that for Mrs. Ben Halliday when her husband was she formed the acquaintance of Mr. Cantoni in running his transcontinental 'pony express.' July, 1884. At that time she was twenty-two He afterward, it is said, became the private years old and living in Brooklyn with her hus- secretary of Mr. Halliday, and thus laid the band, David C. Brennan.

foundation of his present fortune." * They had three daughters, and were a contented and happy family. Mr. Cantoni repre- In Chilton v. The Progress Printing & Pubsented himself to her as an unmarried man, and lishing Co., 72 L. T. Rep. 442, the opinion is vowed that he was desperately in love with her. of more than usual interest on account of the He begged her to get a divorce from her hus- increasing number of cases arising in this counband, and as an inducement told her that he try at the present time over infringments of was a banker and a millionaire. He promised copyrights. The defendants had published the if she would leave her husband to give her $5,- names of horses which the plaintiffs had picked ooo a year, take care of her and her children as

out to win in a number of races and which he long as she lived and provide in case of his daily made up and issued in a pamphlet. In death for the payment of the same annuity to the opinion of Lord Halsbury he says: her as long as she lived.

“ If you look at what is the real thing here, “ Enticed, as she furtlrer says in her com- you find that it is not the casting into printed plaint, she began proceedings and in 1887 re-words the result of the plaintiff's investigation ceived a decree from Judge Dyckman at White which has enabled him to form his opinion. It Plains. Mr. Cantoni furnished the money for is not that which is sought to be protected. prosecuting the divorce suit, and at his solicita- What is really sought to be protected is the tion no application was made for alimony. The plaintiff's opinion, and he had published his decree being obtained, they began living to- opinion. It is admitted that that opinion is gether. She supposed that she was his wife, susceptible of being handed down in any way but at his wish they assumed the name of Mr. except in writing. If the plainiff chooses to and Mrs. Fortunay. They lived together seven print his opinion, and thereby make a copy of years and had four children, only two of whom lit, can that be protected from infringment? Is the thing subject matter of copyright? I am been actively engaged in legal work, and reof opinion that it is not. It is nothing in the minds us of the work he has performed for the nature of literary composition. Then comes English bar. He was born on the 27th day of the extended interpretation of what a "book” November, 1812, in Oxfordshire, and in 1830 is to be for the purposes of the act. I can received a scholarship at Oxford. There he find no provision which properly indicates that acquired a reputation as a scholar, and won such a matter as we are now dealing with is to many prizes and awards. He entered the be subject-matter of copyright. I, therefore chambers of Mr. Booth, a well-known conveythink that there is nothing here which can be ancer, and later on was with several large legal treated as protected by the language or by the firms.

firms. At the bar he rose rapidly, and quickly policy of the act. There is no subject matter made his mark. In 1872 he succeeded Lord of copyright. That is the view which appears Hatherley as lord chancellor. In this office he to me to be the true view of this case. Then

carried out many important changes which with reference to the question of infringment were of great aid to the English judicature. He I have very great difficulty in dealing with it; made an effort to reform legal education, but not that in this case I have the least doubt, for

in this he did not succeed. He took an active I have not. But the difficulty is to give in interest in the founding of the Legal Associadogmatic form a proposition which will justify tion, of which he was the first president, and at my refusal to consider what the defendants all times strove most earnestly to raise the standhave done an infringment by any rule of law. ard of legal training at the bar. The effort The real difficulty arises in this way: Assume which was later made for improvement in this a copyright to be protected. What is or is not direction was the result of his efforts, though an infringment of that copyright must in all he really took no active part in the reformation. cases depend upon the particular facts with

He was a scholar of rare ability, and was an which you are dealing. Any attempt to give

earnest student of the classics. in spoken or written language a definition which will include all cases must be a failure Sir James Bacon, having reached the age of from the very nature of the thing with which ninety-seven years, is another of the distinone is dealing. I observe that Jervis, C. J. guished jurists who have recently died in Eng. remarks, in the case to which I referred in the land. His death recalls the fact that many of course of the argument of Sweet v. Benning, the members of the English bar have reached 16 C. B. 459, that it is undoubtedly exceed- an extreme old age. Sir Edward Coke died in ingly difficult, and perhaps absolutely impossi- his eighty-third year; Sir John Maynard lived ble, to lay down any general rule upon this to be eighty-nine; the Rt. Hon. James Fitzgersubject. He says (at p. 481), “ I do not assent als was over ninety years old at the time of his to the argument urged by Mr. Lush that every death; the Rt. Hon. Thomas Lefroy, who was publication of a portion of a work in which lord chief justice of Ireland, died in his ninetythere is subsisting copyright will afford a first year; Lord Norbury, an Irish chief justice, ground of action. It is a question of degree died at the age of ninety-two years; Lord which must depend upon the circumstances of Plunkett, lord chief justice of Ireland, died in each particular case.' That I believe to be his ninetieth year, and the Hon. Francis Blackemphatically true, and it supports the reason

burn was in his eighty-sixth year when, in 1866, which I said rendered it impossible for me to he was appointed for the second time to the ofgive any abstract proposition which can com

fice of lord chancellor of Ireland. prehend all cases. All that I say in this case is, that there is no subject-matter of copyright; was held that, where persons converted property

In McCarthy v. Roswald (Ala. Sup. Ct.) it but that, if it was the subject-matter of copyright, I think that there has been no infring-ter's failure to repudiate their action, or to re

on which a landlord had a lien for rent, the latinent of it.

ply to their letter proposing to pay for what The death of the Earl of Selden on the 4th they had appropriated, was not a ratification of of June brings to an end one whose life has their act.

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