In re Sam Kee

• Decision Date: 02 May 1887
• Citation: 31 F. 680
• Parties: In re SAM KEE, on Habeas Corpus.
• Court: U.S. District Court — Northern District of California

31 F. 680

In re SAM KEE, on Habeas Corpus.

United States Circuit Court, N.D. California.

May 2, 1887

T. D Riordan, for petitioner.

O. R Coghlan, for respondent.

SAWYER J.

The petitioner is imprisoned in pursuance of a judgment of a justice of the peace of Napa county, for a 'misdemeanor by maintaining and carrying on a public laundry, where articles are washed and cleansed for hire, at a house situated on Main street, between First and Pearl streets, in the city of Napa, contrary to ordinance 146 of said city of Napa, prohibiting the establishment, carrying on, or maintaining of public laundries or wash-houses in certain limits.' The provisions of the ordinance under which the conviction was had are as follows:

'Section 1. It shall be unlawful for any person or persons to establish, maintain, or carry on the business of a public laundry or wash-house, where articles are cleansed for hire, within the following prescribed limits in the city of Napa: Commencing at the south-easterly corner,' etc.

Giving at length bounds, including the larger part of the city.

'Sec. 2. Any public laundry or wash-house, established, maintained, or carried on in violation of this ordinance, is hereby declared to be a nuisance.

'Sec. 3. Any person violating any provision of this ordinance shall, upon conviction thereof, before any court having jurisdiction to try the offense, be punished by a fine not exceeding one hundred dollars, and an alternate judgment may be given requiring such person to be imprisoned until said fine is paid, not to exceed one day for each dollar of the fine.'

The case clearly falls within the decision of this court in Re Tie Loy, arising under a similar ordinance of the city of Stockton, (26 F. 611,) and within the principles authoritatively established by the supreme court of the United States in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064.

The laundry business has been carried on by the petitioner and his predecessors, at the location occupied by him, for 20 years, and by the petitioner himself 8 years. There is nothing tending in the slightest degree to show that this laundry is, in fact, a nuisance, and the uncontradicted allegations of the petition are that it is not. So far as appears, it is only made a nuisance by the arbitrary declaration of the ordinance; and it is beyond the power of the common council, by its simple fiat to make that a nuisance which is not so in fact. Yates v Milwaukee, 10 Wall. 505. To make an occupation, indispensable to the health and comfort of civilized man, and the use of the property necessary to carry it on, a nuisance, by a mere arbitrary declaration in a city ordinance, and suppress it as such, is simply to confiscate the property, and deprive its owner of it without due process of law. It also abridges the liberty of the owner to select his own occupation and his own methods in the pursuit of happiness, and thereby prevents him from enjoying his rights, privileges, and...