In re Ah Chong

• Decision Date: 09 June 1880
• Citation: 2 F. 733
• Court: United States Circuit Court, District of California
• Parties: In re AH CHONG.

2 F. 733

In re AH CHONG.

United States Circuit Court, D. California.

June 9, 1880

Delos Lake and Thos. D. Riordan, for petitioners.

A. L Hart, Attorney General, for respondents.

Habeas Corpus.

SAWYER C.J.

Article 19 of the new constitution of California, headed 'Chinese,' in addition to the provisions referred to in Parrott's case, recently decided in this court forbidding the employment of Chinese by any corporation, or on any state, county, municipal, or other public work, also contains the following provision:

'Section 4. The presence of foreigners ineligible to become citizens of the United States is declared to be dangerous to the well-being of the state, and the legislature shall discourage their immigration by all the means within its power. Asiatic coolieism is a form of human slavery, and is forever prohibited in this state; and all contracts for coolie labor shall be void. All companies or corporations whether formed in this country or any foreign country, for the importation of such labor, shall be subject to such penalties as the legislature may prescribe. The legislature shall delegate all necessary power to the incorporated cities and towns of this state for the removal of Chinese without the limits of such cities and towns, or for their location within prescribed portions of those limits; and it shall also provide the necessary legislation to prohibit the introduction into this state of Chinese after the adoption of this constitution. This section shall be enforced by appropriate legislation.'

In obedience to the mandate of the constitution requiring these provisions to be enforced by appropriate legislation, the legislature, besides the act in question in Parrott's case, passed three other acts: One on April 3, 1880, entitled 'An act to provide for the removal of Chinese whose presence is dangerous to the well-being of communities outside the limits of cities and towns in the state of California,' in which it is provided that 'the board of trustees or other legislative authority of any incorporated city or town, and the board of supervisors of any incorporated city and county, are hereby granted the power, and it is hereby made their duty, to pass and enforce any and all acts or ordinances or resolutions necessary to cause the removal without the limits of such cities and towns, or city and county, of Chinese now within, or hereafter to come within, such limits. ' St. 1880, p. 114. Another act on April 12, 1880, entitled 'An act to prohibit the issuance of licenses to aliens not eligible to become electors of the state of California,' which provides as follows: 'Section 1. No license to transact any business or occupation shall be granted or issued by the state, or any county or city, or city and county, or town, or any municipal corporation, to any alien not eligible to become an elector of this state. Section 2. A violation of the provisions of section 1 of this act shall be deemed a misdemeanor, and be punished accordingly. ' And on April 23, 1880, still another act, entitled 'An act relating to fishing in the waters of this state,' which provides as follows: 'Section 1. All aliens incapable of becoming electors of this state are whereby prohibited from fishing, or taking any fish, lobsters, shrimps, or shell-fish or any kind, for the purpose of selling or giving to another person to sell. Every violation of the provisions of this act shall be a misdemeanor, punishable upon conviction by a fine of not less than $25, or by imprisonment in the county jail for a period of not less than thirty days.'

All these acts, as well as the acts and constitutional provisions considered in Parrott's case, are in pari materia; and being so, indicate and illustrate the motive or purpose of the passage of any one of them. The petitioners in the several cases, subjects of China, of the Mongolian race, were arrested for taking fish in San Pablo bay, within the state, and selling the same in violation of the provisions of the last-named act, tried and convicted before the proper court, and sentenced to imprisonment for the period of 30 days. Being imprisoned in pursuance of the judgments, they severally sued out writs of habeas corpus, and now ask to be discharged on the ground that their imprisonment is in violation of our treaty with China, commonly known as the Burlingame treaty, and the fourteenth amendment to the national constitution. The attorney general, who appears for the respondent in the interest of the state, does not seek to re-open the question decided in Parrott's case, but he endeavors to distinguish the two cases, and relies upon McCready v. Virginia, 94 U.S. 391, to support the distinction. Citizens of Maryland were in the habit of crossing over the line into Virginia, and planting oysters in the waters of the latter state. The state of Virginia, desiring to preserve the profits of the business to its own people, passed an act making it an offence for citizens of other states to take oysters from or plant them in the waters of Virginia. McCready was convicted and fined for planting oysters in Ware river, one of the waters of Virginia, in violation of this act. He claimed the act to be void on the ground that it was passed in violation of that provision of the national constitution which says: 'Citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. ' The supreme court held that the right to take fish in the public waters of the state is not a privilege of inter-state citizenship. It held the state to be the owner, subject to the right of navigation, of the tide-lands, and the tide-waters covering them; also of the fish therein, so far as capable of ownership, while running in the waters. The court, speaking by the chief justice, says: 'These (the fisheries) remain under the exclusive control of the state, which has consequently the right, in its discretion, to appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is, in effect, nothing more than a regulation of the use by the people of their common property. The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship. 94 U.S. 395. The right of citizens of Virginia...