Raich v. Truax

• Decision Date: 07 January 1915
• Docket Number: E-9.
• Citation: 219 F. 273
• Parties: RAICH v. TRUAX et al.
• Court: U.S. District Court — District of Arizona

219 F. 273

RAICH v. TRUAX et al.

No. E-9.

United States District Court, D. Arizona.

January 7, 1915

John H Campbell, of Tucson, Ariz., and J. S. Williams and Edward J Flanigan, both of Bisbee, Ariz., for complainant.

Wiley E. Jones, Atty. Gen. of Arizona, Leslie C. Hardy, Asst. Atty Gen. of Arizona, and William B. Cleary, of Bisbee, Ariz., for respondents.

Before MORROW, Circuit Judge, and VAN FLEET and SAWTELLE, District judges.

SAWTELLE District Judge.

This is an application for a temporary injunction pendente lite to restrain the Attorney General of the state of Arizona and the county attorney of Cochise county, Ariz., from enforcing a law enacted by vote of the people of that state, under an initiative petition, on November 3, 1914, upon the ground that the law is in violation of the Constitution of the United States, and the hearing thereof is had under section 266 of the Judicial Code.

The act in question is entitled:

'An act to protect the citizens of the United States in their employment against noncitizens of the United States, in Arizona, and to provide penalties and punishment for the violation thereof.'

And section 1 thereof provides:

'Any company, corporation, partnership, association or individual who is, or may hereafter become an employer of more than five (5) workers at any one time, in the state of Arizona, regardless of kind or class of work, or sex of workers, shall employ not less than eighty per cent. qualified electors or native-born citizens of the United States or some sub-division thereof.'

By section 2, violations of the act on the part of employers are made misdemeanors and punishable by fine of not less than $100 and imprisonment for not less than 30 days; and by section 3, any misrepresentation or false statement by an employe as to his or her nativity or citizenship is made punishable by a fine of not less than $100 and imprisonment for not less than 30 days. The employment of more than 20 per cent. of persons who are not qualified electors, or native-born citizens of the United States, or of some subdivision thereof, by an employer of labor who employs at any one time more than five persons, is not made an offense on the part of the alien so employed, and no penalty attaches to him in consequence of his employment.

The complainant alleges that he is a native and subject of the empire of Austria; that he is employed by the defendant Truax in a restaurant kept by the defendant Truax at Bisbee, Ariz.; that the defendant has in his employ more than five persons; that the said defendant is willing and anxious to retain the complainant in his employ, but that the Attorney General of the state of Arizona and the county attorney of said Cochise county threaten to prosecute the said defendant under the act aforesaid; that if the defendant Truax shall be compelled by prosecution under said act to discharge the complainant from his employ, he, the complainant, will suffer irreparable injury on account of his discharge; and that the act in question is violative of the rights of the complainant under the Constitution of the United States, in that it denies to him the equal protection of the laws which is guaranteed under the fourteenth amendment to all persons submitting themselves to the jurisdiction and laws of the United States, whether citizens or aliens.

On behalf of the state of Arizona, it is avowed by the Attorney General that the law in question will be enforced against all persons within its borders and that it is a valid exercise of the police powers of the state.

We think that the act in question denies to the complainant the equal protection of the laws, and is therefore in violation of the fourteenth amendment to the Constitution of the United States, and is void. In the case of Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup.Ct. 1064, 30 L.Ed. 220, the Supreme Court of the United States said:

'The fourteenth amendment to the Constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws. * * * The fourteenth amendment was undoubtedly intended not only that there should be no arbitrary deprivation of life and liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; * * * and the rights of the complainant are not less, because they are aliens and subjects of the emperor of China.'

The Constitution of California, adopted in 1879, contained a provision prohibiting any corporation from employing directly or indirectly any Chinese or Mongolians in any capacity, and the validity of this provision was attacked in the case of In re Tiburcio Parrott (C.C.) 1 Fed. 481, and the court there held:

'That the provision was in violation both of the Constitution and laws of the United States and the treaty between the United States and the empire of China.'

And it added that:

'In our country, hostile and discriminating legislation by a state against persons of any class, sect, creed, or nation, in whatever form it may be expressed, is forbidden by the fourteenth amendment of the Constitution.'

In the same case the opinion of Mr. Justice Swayne of the United States Supreme Court was quoted with approval that:

'Labor is property, and, as such, merits protection. The right to make it available is next in importance to the right of life and liberty. It lies, to a large extent, at the foundation of most other forms of property.'

In the case of In re Ah Chong (C.C.) 2 Fed. 733, the constitutionality of a law enacted by the state of California prohibiting aliens who were incapable of becoming qualified electors from fishing in the waters of the state was called in question, and the law was declared to be in violation of the fourteenth amendment of the Constitution and void.

In the case of Fraser v. McConway & Torley Co., 82 F. 257, the United States Circuit Court for the District of Pennsylvania, in construing an act of the assembly of the state of Pennsylvania, approved the 15th day of June, 1897 (P.L. 166), which provides:

'That all persons, firms, associations or corporations employing one or more foreign born unnaturalized male persons over twenty-one years of age within this commonwealth, shall be and are hereby taxed at the rate of three cents per day for each day each of such foreign born unnaturalized male persons may be employed, which tax shall be paid into the respective county treasuries; one-half of which tax to be distributed among the respective school districts of each county, in proportion to the number of schools in said districts; the other half of said tax shall be used by the proper county authorities for defraying the general expenses of the county government. * * * That all persons, firms, associations and corporations shall have the right to deduct the amount of the tax provided for in this act from the wages of any and all employes, for the use of the proper county and school district as aforesaid'

-- said:

'The court is here called upon to consider whether these provisions of this act of assembly are in conflict with the Constitution or laws of the United States. The fourteenth amendment to the Constitution of the United States declares 'Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' * * * Congress has enforced the above-quoted provisions of the fourteenth amendment by legislation embodied in sections 1977 and 1979 of the Revised Statutes (Comp. St. 1913, Secs. 3925, 3932). The former of these sections enacts: '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.' It will be perceived that this statute, following in this regard the constitutional provisions themselves, embraces within its protection, not citizens merely, but all 'persons' within the jurisdiction of the United States. The question of the extent of the application of these constitutional provisions with respect to persons was before the Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356, 359, 6 Sup.Ct. 1064 (30 L.Ed. 220), and it was there decided that the guaranties of protection contained in the fourteenth amendment to the Constitution embraced subjects of the emperor of China residing in the state of California. * * * There can be no doubt that the fourteenth amendment embraces ...