and learnedly discussed by counsel on both sides, and Cooley's Constitutional Limitations, Potter's Dwarris on Construction of Statutes, Sedgwick on Constitutional Law, and other constitutional authorities, and decided cases innumerable, are cited in aid of and against its validity. It is certainly a most effective means of abating a nuisance, viz., the squirrels, and bringing about a very desirable end. We regret exceedingly that we cannot see our way clear to uphold and enforce such an important and original piece of legislation. Indeed, it would give us great pleasure to see the power here assumed applied to snakes, tarantulas, ants, flies, fleas, and other reptiles, insects, and pests, which tend to make man's life a burden, and to have it exercised and enforced in every county in the State. But we are unable to see by what right or authority of law a board of supervisors can impose upon a land-owner the burden and expense of exterminating animals feræ nature on his own land, or elsewhere. It is true, the County Government Act, section 25, subdivision 28, gives boards of supervisors power to "provide for the destruction of gophers, squirrels, other wild animals, noxious weeds, and insects injurious to fruit-trees or vines, or vegetable or plant life," and this is a power that should be upheld in all cases, where the means employed are reasonable and not otherwise objectionable. But certainly this authority cannot be so far extended as to require a land-owner, under a penalty, to exterminate wild animals of which he is not the owner, and over which he cannot, in the nature of things, have any control or dominion. From our limited knowledge of the nature of the squirrel-tribe in this State, such a task would seem to us to be almost, if not quite, impossible.

The ordinance requires that all occupants of lands, within ninety days, exterminate and destroy the ground-squirrels on their respective lands, and thereafter keep said lands free and clear therefrom. This might be successfully done by the free and judicious use of poison, and perhaps by some other means, on very small tracts of land, but on large tracts it would certainly require eternal vigilance, if it could be accomplished at all, and if, after the extermination of the intruders on his own lands, one, only one, should come over from the land of his neighbor, the ordinance would be violated. The occupant of lands bordering on another county, where no such regulation prevailed, and the pesky squirrel was allowed to propagate and grow unmolested, would be in a most unfortunate condition. Such an ordinance differs materially from laws requiring an occupant of lands to keep them free from noxious weeds, or such as make it the duty of an owner of diseased domestic animals to kill them, in order to prevent the spread of the disease. These are matters over which the property-owner has control, and the requirements are reasonable and just.

The respondent attempts to sustain the ordinance by and under section 11 of article XI. of the Constitution of this State, which provides that any county, city, town, or township may make and enforce, within its limits, all such local, police, sanitary, and other regulations

66

as are not in conflict with the general laws." But the ordinance is not intended to preserve the peace and quiet of the county, or to prevent the use of one's property to the injury of another, or for the protection of the lives, limbs, or comfort of all persons, or to prevent the propagation or spread of disease, nor is it in any proper sense a police or sanitary regulation. What is meant by other regulations," in the section cited, may be a question, but it must certainly be limited to objects similar to those denominated police and sanitary. If the Board of Supervisors had no authority to pass such an ordinance, then no offence was committed by the petitioner, the act or omission on his part was not a crime, the court had no jurisdiction to try or convict him, and he is entitled to his discharge.

We know of no law which can be held to authorize a board of supervisors to enact such an ordinance, and we are quite clear that it cannot be enforced, for the reason that it is unreasonable and burdensome in the extreme. Let the petitioner be discharged.

Fox, J., SHARPSTEIN, J., and THORNTON, J., concurred. PATERSON, J., and MCFARLAND, J., concurred in the judgment.

IN RE LEE SING ET AL.

CIRCUIT COURT OF THE UNITED STATES, N. D. CALIFORNIA. 1890.

AT Law.

[43 Fed. Rep. 359]

The ordinance under which the arrest was made is as follows. [See the note.']

Thos. D. Riordan, for petitioners. John I. Humphreys, for the City.

SAWYER, J. The petitioners are under arrest for the violation of Or

1 "Order No. 2190 designating the location and the district in which Chinese shall reside and carry on business in this city and county.

"The people of the city and county of San Francisco do hereby ordain as follows: "Section 1. It is hereby declared to 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 prescribed for their location.

"Sec. 2. [This section defines the limits of the district appropriated to the residence of the Chinese.]

"Sec. 3. 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 Francisco shall either remove without the 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 shall be punished by imprisonment in the county jail for a term not exceeding six months.

Sec. 5. It is hereby made the duty of the chief of police and of every member of

der No. 2190, commonly called the "Bingham Ordinance," requiring all Chinese inhabitants to remove from the portion of the city heretofore occupied by them, outside the city and county, or to another designated part of the city and county. . . . [Then follows section 1 of the Fourteenth Amendment.]

Article 6 of the Burlingame Treaty with China, provides, that “Chinese subjects, visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions, in respect to travel or residence, as may there be enjoyed by the citizens 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 same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." . . . [Then follows Art. 6, cl. 2, of the Constitution of the United States.]

...

The discrimination against Chinese, and the gross inequality of the operation of this ordinance upon Chinese, as compared with others, in violation of the constitutional, treaty, and statutory provisions cited, are so manifest upon its face, that I am unable to comprehend how this discrimination and inequality of operation, and the consequent violation of the express provisions of the Constitution, treaties, and statutes of the United States, can fail to be apparent to the mind of every intelligent person, be he lawyer or layman.

The ordinance is not aimed at any particular vice, or any particular unwholesome or immoral occupation, or practice, but it declares it "to 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 carrying 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, herein provided for their location." And again, section 4 provides that "any Chinese residing, locating, or carrying on business

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, Kingwell, Barry, Noble."

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, shall be punished by imprisonment in the county jail for a term not exceeding six months. Upon what other people are these requirements, disabilities, 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 young, 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 have carried on all kinds of business appropriate to a city, mercantile, manufacturing, and otherwise, for more than forty years. Many of them were born there, in their own houses, and are citizens of the United States, entitled 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 leave 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 limits, within the city and county, not owned by them, or by the city. This, besides being discriminating, against the Chinese, and unequal in its operation as between them and all others, is simply an arbitrary confiscation of their homes and 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 owners with 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 particulars, 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 not waste more time, or words in discussing the matter. To any reasonably intelligent and well-balanced mind, discussion or argument would be wholly unnecessary and superfluous. To those minds, which are so constituted, that the invalidity of this ordinance is not apparent upon inspection, and comparison with the provisions of the Constitution, treaties, and laws cited, discussion or argument would be useless. The authority to pass this order is not within any legitimate police power of the State. See In re Tie Loy, 11 Sawy. 472, 26 Fed. Rep. 611; In re Ah Fong, 3 Sawy. 144; Chy Lung v. Freeman, 92 U. S. 275; In re Quong Woo, 7 Sawy. 531, 13 Fed. Rep. 229; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064; Ho Ah Kow v. Numan, 5 Sawy. 552.

Let the order be adjudged to be void, as being in direct conflict with the Constitution, treaties, and statutes, of the United States, and let the petitioners be discharged.1

MAYOR, ETC., OF BALTIMORE v. RADECKE.

MARYLAND COURT OF APPEALS. 1878.

[49 Md. 217.]

APPEAL from the Circuit Court of Baltimore City. The case is stated in the opinion of the court.

The cause was argued before BARTOL, C. J., BOWIE, MILLER, and ALVEY, JJ. Thomas W. Hull and James L. McLane, for the appellant. E. Duffy and S. Teackle Wallis, for the appellee.

MILLER, J., delivered the opinion of the court. The appellee is tenant and occupant of certain premises situated on McClellan's Alley, in a central business locality in the city of Baltimore, where he and his father before him had carried on the business of carpentering and boxmaking since the year 1853. In 1866 he applied to the Mayor and City Council for permission, which was granted, to erect and use on these premises and in the carrying on of his business, a steam-engine. The resolution granting this permit contained a provision, in conformity to a city ordinance on the subject, that the engine was "to be removed after six months' notice to that effect from the Mayor." Upon the passage of this resolution he erected and has ever since used a steamengine in his said business, but some time in the year 1873 the Mayor gave him notice to remove it, which he refused to do. The city, then, after the expiration of the six months instituted a suit before a justice of the peace, for the penalty of non-removal provided in the ordinance, and the appellee thereupon filed the bill in this case for an injunction to restrain the prosecution of that action and others which the city threatened to bring from day to day in order to enforce the removal of this engine. The court below on final hearing ordered the injunction to be issued as prayed and made it perpetual. From this order the Mayor and City Council have appealed.

The city legislation on the subject, in force at the time this permit. was granted to the appellee, was first, the 56th section of Ordinance No. 33, approved June 5, 1858, by which it was provided under prescribed penalties that no person should “erect, build, or have put up any steam saw-mill or machinery, or any steam-engine for any purpose whatever, or planing machine, or machinery within the limits of the city, without first obtaining the sanction of the Mayor and City Council," and secondly, part of the 5th section of Ordinance No. 78, approved June 9, 1864, which provided that "all permits granted for steam

1 Compare Ex parte Sing Lee, 96 Cal. 354 (1892). — ED.