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Matter of Yick Wo.

Ordinance or order No. 1569 of the board of supervisors, under which the petitionor was convicted, is in the following language: ORDER No. 1569.— PRESCRIBING THE KIND OF BUILDINGS IN

WHICH LAUNDRIES MAY BE LOCATED. The People of the City and County of San Francisco do ordain as

follows : Sec. 1. It shall be unlawful from and after the passage of this order for any person or persons to establish, maintain or carry on a laundry within the corporate limits of the city and county of San Francisco, without having first obtained the consent of the board of supervisors; except the same be located in a building constructed either of brick or stone.

§ 2. It shall be unlawful for any person to erect, build or maintain, or cause to be erected, built or maintained, over or upon the roof of any building now erected or which may hereafter be erected within the limits of said city and county, any scaffolding, without first obtaining the written permission of the board of supervisors, which permit shall state fully for what purpose said scaffolding is to be erected and used, and said scaffolding shall not be used for any other purpose than that designated in such permit..

§ 3. Any person who shall violate any of the provisions of this order shall be deemed guilty of a misdemeanor, and upon convic. tion thereof, shall be punished by a fine of not more than $1,000, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment.

In board of supervisors, San Francisco, May 24, 1880.

After having been published five successive days according to law, taken up and passed by the following vote:

Ayes — Supervisors Schottler, Mason, Litchfield, Drake, Whitney, Eastman, Fraser, Taylor, Doane, Bayley, Torrey, Stetson. Approved, SAN FRANCISCO, May 26, 1880.

JNO. A. Russell, Clerk.

I. S. K. LLOCH, Mayor, and ex-officio President Board Supervisors. Section 68 of order 1587, passed July 28, 1880, is in substance and effect the same as section 1 of No. 1569, quoted above. · It is admitted that petitioner had a license, a certificate from the board of fire wardens, and a certificate from the health officer, copies of which are on file.

Matter of Yick Wo.

It is further admitted that petitioner applied to the board of supervisors, June 1, 1885, for consent of said board to maintain and carry on his laundry, but that said board refused said consent.

By section 2 of article 11 of the Constitution of this State, it is provided that “any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws."

By section 74 of the act of April 19, 1856, usually known as the Consolidation Act, the board of supervisors is empowered, among other things,“ to provide by regulation for the prevention and summary removal of nuisances to public health, the prevention of contagious diseases, * * * to prohibit the erection of wooden buildings within any fixed limits where the streets shall have been established and graded, * * * to regulate the sale, storage, and use of gunpowder or other explosive or combustible materials and substances, and make all needful regulations for protection against fire. To make such regulations concerning the erection and use of buildings as may be necessary for the safety of the inhabitants."

“Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all," says Chancellor Kent, “ be interdicted by law, in the midst of dense inasses of population, on the general and rational principle that every person ought to so use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community. 2 Kent Com. 340.

Every citizen holds his property subject to the proper exercise of the powers and restrictions above referred to.

A large proportion of the laws and ordinances relating to the comfort, safety, health, convenience, good order, and general welfure of the inhabitants of cities and towns, and which we style police laws and regulations, have the effect in a greater or less degree to disturb and curtail individual enjoyment and personal rights.

For the injury which the citizen saffers, he is, in contemplation of law, compensated by his share in the general benefits flowing from the regulations, found essential to the general welfare. It is but a

Matter of Yick Wo.

reasonable restraint upon the use of property in those cases, where its unlimited use or enjoyment would produce serious mischief to others.

The right to establish fire limits, and to interdict the constructiou of wooden buildings within certain specified bounds, is a famil. iar exercise of the authority usually conferred upon municipal corporations.

In towns like San Francisco, constructed largely of wood, the danger from fire is ever present and overshadowing.

It is not therefore strange that the legislature, in conferring certain powers upon the municipal authorities of the city, included not only the authority to regulate the erection, but also the use of building, so far as necessary for the safety of the inhabitants.

To prevent the construction of wooden buildings within the densely inhabited portions of a city may become an imperative duty on the part of the authorities. They may not destroy those already erected. But the use of wooden structures within given limits, for specific and highly dangerous purposes, may become quite as detrimental as the erection of new structures of the same character; and as the power of regulation extends to the use as well as to the crection of wooden buildings, we can discern no assumption of unwarranted authority in the order No. 1569 which interdicts the establishing, maintaining, or carrying on laundries, except by consent of the board of supervisors, save in brick or stone buildings. The business of conducting a laundry involves a constant use of fires, under circumstances, and perhaps by persons, liable to result in conflagrations; of these facts the supervisors are the judges.

In given instances under favorable circumstances, the danger of fire from this business may be reduced to a minimum, or may not at all jeopardize the surrounding property. In this last class of cases, no objection can be seen why permits should not be granted, as provided for in order 1569. It has been the practice in municipal corporations to vest the granting of licenses for a variety of objects in the discretion of the corporate authorities, or some of them. Without such authority, boards of health and various other agencies by which the lives and health of citizens, and the safety and due enjoyment of their property are protected, would be powerless for good.

The argument that the discretion to permit the establishment of laundries in wooden buildings by the supervisors is liable to abuse, Matter of Yick Wo.

cannot be held conclusive. No doubt all power is liable to abuse, wheresoever lodged.

In theory however, as well as in ordinary practice, the persons selected to discharge governmental duties, by reason of suppose! qualifications for the several positions in which they are placed, will be found to possess the capacity and integrity essential to it proper administration of the trust reposed in them.

If they prove deficient in these qualifications, the evil cannot be remedied by invalidating their acts, performed by virtue of authority vested in them, or where they have exercised discretionary powers, by impugning their judgment or motives, rather than their right to exercise the discretion.

The board of supervisors, under the several statutes conferring authority upon them, has the power to prohibit or regulate all occupations which are against good morals, contrary to public order and decency, or dangerous to the public safety.

Clothes-washing is certainly not opposed to good morals, or subversive of public order or decency, but when conducted in given localities, it may be highly dangerous to the public safety. Of this fact the supervisors are made the judges, and having taken action in the premises, we do not find that they have prohibited the estab. lishment of laundries, but that they have, as they might well do, regulated the places at which they should be established, the character of the buildings in which they are to be maintained, etc. · The process of washing is not prohibited by thus regulating the places at which, and the surroundings by which, it must be exercised.

The order No. 1569 and section 68 of order No. 1587 are not in contravention of common right, or unjust, unequal partial, or oppressive in such sense as authorizes us in this proceeding to pronounce them invalid.

[Omitting other points. ]

We have not deemed it necessary to discuss the question in the 'light of supposed infringement of petitioner's rights under the Constitution of the United States, for the reason that we think the principles upon which contention on that head can be based have in effect been set at rest by the cases of Barbier v. Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S. 703.

That this class of orders is not repugnant to our State Constitution need not now be discussed, as their validity with reference to

Osment v. McElrath.

that instrument has been sustained in Ex parte Mount, 66 Cal. 448, 575; Ex parte Moynier, 65 Cal. 33; Ex parte Wolters, 65 Cal. 269.

A regulation which applies alike to all persons engaged in a given pursuit, without distinction as to nationality, residence, age, sex, or condition, is not, when otherwise regular and valid, subject to the criticism of being in violation of treaty obligations existing between the United States and China.

We are of opinion the petitioner should be remanded to the custody of the sheriff.

BELCHER, C. C., and Foote, C., concurred.

The COURT.—For the reasons given in the foregoing opinion, the petitioner is remanded to the custody of the sheriff.

OSMENT V. McELRATH.

(68 Cal. 466.)

Partnership - of lawyers winding up statute of fraude.

On dissolution of a partnership between lawyers, each is entitled to share in

the fees collected from the unfinished business. An agreement by one to wind up the business and pay the other his share of

the fees collected, is valid and is not within the statute of frauds, although it was not expected that the business could be wound up in a year.

A

CTION for settlement of partnership accounts. The opinion

states the case. The plaintiff had judgment below.

William H. Fifield, for appellant.
N. H. Clement, for respondent.

BELCHER, C. C. In July, 1869, the plaintiff and defendant entered into partnership as attorneys and counsellors at law, and took an office in the city of San Francisco. The partnership was continued until the 7th of November, 1874, and then dissolved by mutual consent. At the time of its dissolution all moneys on hand, and all other assets and property of the firm were equally divided between the partners. There were some fees due, but uncollected, for business which had been finished, and they had several cases in the courts, in some of which the fees were, and in others were not,

Vol. LVIII — 3

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