Wong Wai v. Williamson

• Citation: 103 F. 1
• Decision Date: 28 May 1900
• Docket Number: 12,937.
• Court: U.S. District Court — Northern District of California
• Parties: WONG WAI v. WILLIAMSON et al.

103 F. 1

WONG WAI v. WILLIAMSON et al.

No. 12,937.

United States Circuit Court, N.D. California.

May 28, 1900

Reddy Campbell & Metson (Maguire & Gallagher, Samuel M. Shortridge John E. Bennett, and Robert Ferral, of counsel), for complainant.

Frank L. Coombs, U.S. Atty., and Marshall B. Woodworth, Asst. U.S Atty., for defendant J. J. Kinyoun.

Charles L. Weller, Asst. Dist. Atty., for other defendants.

Before MORROW, Circuit Judge, and HAWLEY and DE HAVEN, District Judges.

MORROW Circuit Judge.

This action is brought by the plaintiff, a subject of the emperor of China, residing in the city and county of San Francisco state of California, against John M. Williamson, Rudolph W. Baum, Louis Bazet, William D. McCarthy, Vincent Buckley, George W. Mendell, and William P. Sullivan, Jr., the acting board of health of said city and county, and J. J. Kinyoun, the acting quarantine officer of the United States government for the port of San Francisco, to restrain the defendants, and all persons acting in their behalf, from requiring the complainant, or any of the Chinese residents of said city and county, to submit to inoculation with the serum known as 'Haffkine Prophylactic,' and from imprisoning, restraining, or confining the complainant or any of said Chinese residents within the limits of said city and county until they have submitted to such inoculation, and from interfering with or restraining, or confining the complainant or any of Chinese residents within the limits of said city and county until they have submitted to such inoculatiion, and from interfering with or restraining said Chinese residents in the exercise of their personal liberty to freely pass from said city and county to other parts of the state of California. It is alleged in the bill that on or about the 18th day of May, 1900, the defendants comprising the said board of health adopted and passed a resolution authorizing, directing, and requiring the inoculation of all the Chinese residents of said city and county with the said Haffkine Prophylactic; that the requirements of said resolution are now being enforced by said defendants, and the said Chinese residents are being restrained and imprisoned within the territorial limits of said city and county unless they submit to said inoculation. It is alleged that said Haffkine Prophylactic is a poisonous substance, made and compounded from living bacteria of the bubonic plague; that it is administered to human beings by hypodermic injection into the tissues of the body, and when so injected produces a severe reaction, and causes great paid and distress generally, a sudden and great rise of temperature, and great depression, which sometimes continues, increasing in severity, until it causes death; that the sole and only purpose for which such inoculation is claimed to be effective or useful is to prevent persons from contracting the bubonic plague if exposed thereto after having been so inoculated. It is also alleged that there is not now, and never has been, any case of bubonic plague in said city and county, or in the state of California, nor any germs or bacteria of said disease. The complainant avers that he has never had or contracted said bubonic plague, and has never been exposed to the danger of contracting it, and complains that the action of the said defendants in confining and imprisoning the said Chinese residents of said city and county is a wrongful and oppressive interference with their personal liberty and their right to the pursuit of their lawful business. It is further alleged that said resolution adopted by the defendants is wholly invalid, void, and contrary to the constitution and laws of the United States and of the laws of the state of California; that said resolution and order is not enforced against other residents of said city and county than those of the Mongolian race, and its enforcement deprives the said Chinese residents of said city and county of the equal protection of the laws, and of their rights and liberties under the constitution of the United States, and the laws and treaties passed and adopted pursuant thereto. The complainant brings this suit, also, in behalf of the 25,000 persons of the Chinese race now residing in said city and county. The prayer of the bill is that an injunction be granted enjoining and restraining the defendants, their agents, employes, and all persons acting in their behalf, from imprisoning, restraining, or confining the complainant, or any of the Chinese residents of said city and county of San Francisco, within the limits of said city and county, or otherwise interfering with or restraining the complainant, or any of said Chinese residents of said city and county, in the exercise of their personal liberty to freely pass from said city and county of San Francisco to other parts of the state of California, and from requiring the complainant, or any of said Chinese residents of said city and county, to submit to inoculation with said Haffkine Prophylactic under penalty of being so confined or restrained or restricted in their right to freely pass from said city and county of San Francisco to other parts of the state of California. Among the affidavits in support of the bill is one by Louis Quong, who declares that he is a person of Chinese extraction, born in the state of California of Chinese parents; that he has been refused permission by the defendants to leave the city and county of San Francisco unless he first obtains a certificate from the board of health of the said city and county, countersigned by J. J. Kinyoun, quarantine officer of the United States for the port of San Francisco, to the effect that the affiant has been inoculated with the preparation known as 'Haffkine Prophylactic.'

Upon the filing of the bill of complaint, together with affidavits supporting the allegations therein contained, the court issued an order to the defendants to show cause why an injunction should not issue, restraining the defendants from committing the acts and carrying into execution the threats set forth in the bill of complaint. To the order to show cause no return has been made as required by the rules of practice in equity cases, but in lieu thereof the defendants John M. Williamson, Rudolph Baum, Louis Bazet, William D. McCarthy, Vincent Buckley, George W. Mendell, and William P. Sullivan, Jr., composing the board of health of the city and county of San Francisco, have produced a copy of a resolution adopted by the board on May 18, 1900, as follows:

'Resolved, that it is the sense of this board that bubonic plague exists in the city and county of San Francisco, and that all necessary steps already taken for the prevention of its spread be continued, together with such additional measures as may be required.'

The defendant J. J. Kinyoun, the acting quarantine officer of the United States at the port of San Francisco, in response to the order has produced the following telegram:

'Washington, D.C., May 21, 1900.

'Surgeon Kinyoun, Angel Island, California: By direction of the president, secretary of treasury has promulgated the following regulations under act of congress March twenty-seventh, eighteen ninety: First, during the existence of plague at any point in the United States the surgeon general, marine hospital service, is authorized to forbid the sale or donation of transportation by common carriers to Asiatics or other races liable to the disease; second, no common carrier shall accept for transportation any person suffering with plague, or any article infected therewith, nor shall common carriers accept for transportation any class of persons who may be designated by the surgeon general of the marine hospital service as being likely to convey the risk of plague contagion to other communities, and said common carriers shall be subject to inspection. Inform transportation companies, and direct them, under above regulations, to refuse transportation to Asiatics, except on your certificate, and instruct bonded inspectors to inspect trains and prevent Asiatics leaving state without your certificate.

'Wyman, Surgeon General Marine Hospital Service.'

No objections being offered to these documents as constituting the return of the defendants, they will be so considered.

The court suggested at the hearing the question whether, upon the facts stated in the bill of complaint, an injunction would lie. Thereupon a parol exception was taken to the bill. After further investigation, the court is of the opinion that it is the proper remedy. The cause of action is not merely that the complainant is deprived of his personal liberty. He and a number of others similarly situated are being deprived by the defendants of their right to travel from San Francisco to other parts of the state in the pursuit of lawful business, and this right, it is alleged, has a pecuniary value to the complainant in excess of the amount required to give this court jurisdiction of the case. The permission to travel being by the acts of the defendants coupled with an alleged unlawful condition or restriction, it is the province of the court to inquire into the facts, and remove the restriction, if found unlawful. This is undoubtedly the principle involved in the numerous cases where courts have granted injunctions to relieve parties from the restrictions and pecuniary injuries inflicted by boycotts, lockouts, and strikes. Wire Co. v. Murray (C.C.) 80 F. 811; Mackall v. Ratchford (C.C.) 82 F. 41; United States v. Debs (C.C.) 64 F. 724; In re Debs, 158 U.S. 573, 15 S.Ct. 900, 39 L.Ed. 1092; Beard v. Burts, 95 U.S. 434, 24 L.Ed. 485. In our opinion, the bill is sufficient, and the parol exception must be overruled.

The defendants constituting the board of health of the ...