103 F. 10 (N.D.Cal. 1900), 12,940, Jew Ho v. Williamson

Docket Nº:12,940.
Citation:103 F. 10
Party Name:JEW HO v. WILLIAMSON et al.
Case Date:June 15, 1900
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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103 F. 10 (N.D.Cal. 1900)




No. 12,940.

United States Circuit Court, N.D. California.

June 15, 1900

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Reddy, Campbell & Metson, Maquire & Gallagher, Samuel M. Shortridge, and John E. Bennett, for complainant.

J. J. Dunne, for defendants.

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

MORROW, Circuit Judge (orally).

Having reached a conclusion as to the disposition to be made of the order to show cause in this case, I deem the circumstances of such a character as to justify an announcement of that conclusion at this time, without the delay incident to the preparation of a written opinion, which will be filed hereafter.

On the 28th day of May, 1900, the board of health of the city and county of San Francisco adopted the following resolution:

'Resolved, that it is the sense of this board that, in consequence of the discoveries in the district bounded by Broadway, Stockton, California, and Kearney streets, of nine deaths due to bubonic plague, which were verified by microscopical and animal inoculation tests, this board fears that there is still danger of the spread of this disease over a larger area, and therefore requests the board of supervisors to declare said district infected, and authorize the board of health to quarantine said district.'

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Thereafter, on the said 28th day of May, 1900, said resolution was filed in the office of the board of supervisors, and thereupon the board of supervisors passed the following ordinance:

'Be it ordained by the people of the city and county of San Francisco, as follows:

'Section 1. The board of health of this city and county is hereby authorized and empowered to quarantine persons, houses, places, and districts within this city and county, when in its judgment it is deemed necessary to prevent the spreading of contagious or infectious diseases.'

This ordinance was approved by the mayor of the city, and thereafter transmitted to the board of health; and immediately thereafter, on the 29th day of May, 1900, at a special meeting of the board of health, a resolution was passed, which, after stating the passage by the board of supervisors of the foregoing ordinance, provided as follows:

'And whereas, after a careful and minute investigation had during a period of three months last past, and from the result of investigation made by Drs. Kellogg, bacteriologist to the board of health, Montgomery, of the University of California, Ophulf, of the Cooper Medical College, and J. J. Kinyoun, of the U.S. marine hospital service, each and all of whom have reported to this board that bubonic plague has existed in the district hereafter mentioned, and that nine deaths have occurred within said period within said district from said disease; and whereas, this board has reason to believe and does believe that danger does exist to the health of the citizens of the city and county of San Francisco by reason of the existence of germs of the said disease remaining in the district hereafter mentioned: Now, therefore, be it resolved: That the health officer be and is hereby instructed to place in quarantine until further notice that particular district of the city bounded north by Broadway, northeast by Montgomery avenue, east by Kearney, south by California, and west by Stockton streets; and that the chief of police is hereby requested to furnish such assistance as may be necessary to establish and maintain said quarantine. These lines may be modified by the health officer, or the chief of police, health board to be notified of the same. This resolution to take effect immediately.'

Thereafter, on May 31, 1900, the board of supervisors passed another ordinance, which, after reciting the filing in the office of the resolution of the board of health of May 28, 1900, provided for the establishment of quarantine regulations in the district named, and directed the chief of police to furnish such assistance as might be necessary to establish and maintain this quarantine.

The complainant in this case, Jew Ho, alleges, among other things, that he resides at No. 926 Stockton street, within the limits of said quarantined district, and is engaged in the business of conducting a grocery store, as the proprietor and manager thereof, at his said place of residence, and that a great number of the patrons and customers of his said business reside at various places in the city and county of San Francisco outside the boundaries of said quarantined district, and are now, and ever since the 29th day of May, 1900, have been, prevented and prohibited by the defendants from visiting, patronizing, and dealing with the complainant in his said grocery store; that the complainant has been prevented and prohibited since the said 29th day of May, 1900, from selling his goods, wares, and merchandise, and from otherwise carrying on the business in which he is engaged. The complainant also alleges that although the said

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resolutions of the board of supervisors and the defendant board of health are in general terms, and purport to impose the same restrictions, burdens, and limitations upon all persons within the said quarantined district, the said resolution is enforced against persons of the Chinese race and nationality only, and not against persons of other races. In this behalf it is alleged that all stores, residences, and other buildings within the quarantined district as described in the resolution, occupied by persons of races other than Chinese, are not subjected to any of the restrictions or limitations provided for by said resolution, whereas those occupied by Chinese are subjected to said restrictions. It is also alleged that wanton and willful discrimination against the Chinese residents of said district by the defendants is shown by the exclusion from the limits of said districts of all physicians employed by Chinese residents, and by the free permission to other residents of said district to select physicians of their own choice, and the permission to all such physicians to enter and depart from all buildings occupied by persons of races other than Chinese within said quarantined district. The complainant alleges that there is not now, and never has been, any case of bubonic plague within the limits of said quarantined district, nor any germs or bacteria of bubonic plague, and that other diseases caused the illness and death of the persons claimed by defendants to have died of the bubonic plague within the 30 days next preceding the filing of this complaint. It is further alleged that the defendants have failed and neglected to quarantine the houses alleged to be so infected from the remainder of said quarantined district, and have wholly failed and neglected to quarantine or otherwise isolate from the other residents of said quarantined district the persons alleged to have been so exposed to the danger of contagion, and therefore likely to transmit the germs of said bubonic plague to others, but have included in said quarantined district an unreasonably large and populous district, namely, 12 blocks, containing a population of more than 15,000 persons, thereby increasing rather than diminishing the danger of contagion and epidemic, both to the people of said district and to the people of San Francisco generally, if there should be any epidemic disease existing in said district; that within said quarantined district are several blocks in which it is not claimed or asserted by the defendants that any case of bubonic plague has existed for 40 days and more next preceding the filing of the complaint, and in which there is not now, and never has been, any danger of contagion or infection. The complainant alleges that he has never had or contracted said bubonic plague; that he has never been at any time exposed to the danger of contracting it, and has never been in any locality where said bubonic plague, or any germs or bacteria thereof, has or have existed; that the action of the defendants in confining and imprisoning the complainant and other Chinese residents within the limits of said quarantined district is a purely arbitrary, unreasonable, unwarranted, wrongful, and oppressive interference with the personal liberty of the complainant and the said Chinese residents, and with their right to the pursuit of their lawful business; that said resolution providing for the said quarantine, and designating said quarantine district, is

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wholly unauthorized, invalid, and void, and contrary to the constitution and laws of the United States, and contrary to and in violation of the laws of the state of California; that it is not enforced against other residents of said district than those of the Chinese race; and that by its enforcement the said Chinese residents of said district are deprived 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 in pursuance thereof. The complainant brings this suit in behalf of the Chinese residents of said quarantined district, to the number of 10,000 and upward, as well as in his own behalf. The prayer of the bill is that an injunction be granted, enjoining and restraining the defendants from interfering with the personal rights and privileges of the complainant.

Upon the filing of this 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 to restrain them from committing the acts and carrying into execution the threats set forth in the bill of complaint. To this order, return has been made by answer. In this answer the defendants allege the organization of the board of health, the provisions of the charter of San Francisco, the authority of the board of health, and the authority of the board of...

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